Sexsplaining, Transgender Edition

Gertrude Warning: This post is not to suggest there is anything wrong with  being transgender. Be whoever you want.  What this post does address is the consequences of the Government’s Transgender Letter, redefining sex discrimination to include discrimination based on gender identity.

In a deliberately provocative twit, I suggested the unthinkable:

This was more than some could accept, and in the best internet fashion, I was asked to explain. But given that twits are a poor format for thoughtful explanation, I instead do so here.

The Department of Justice/Department of Education joint “guidance” letter on transgender students assumes agency authority under Titles VII and IX to include gender identity within the authority granted by prohibited sex discrimination.  While this guidance letter is expressly directed toward public schools, it is, by definition, applicable to gender identity discrimination for colleges and universities as well.  If “sex discrimination” includes gender identity discrimination, it does so in all applicable settings, not just the particular one to which the letter was directed.

Similarly, it applies to all forms of discrimination. Granted, the DoJ/DoE letter was specifically directed to giving guidance as to bathrooms, locker rooms and housing, but discrimination isn’t limited to the particular areas of guidance imposed, but also applies to all forms of discrimination. That guidance has yet to be given doesn’t mean that no discrimination can occur.

So, if we accept that gender identity discrimination is sex discrimination, and that it applies to all entities subject to Titles VII and IX, consider this hypothetical:

Joe meets Lola, and they take a shine to each other.  Joe asks Lola on a date, and Lola affirmatively consents.  Joe goes back to his dorm, and is subtly informed by his roommate, Enrique, that Lola is quite the excellent sweeper on the college’s men’s curling team.

Joe is confused. He’s a bit slow. So Joe texts Lola and asks, “Lola, are you on the men’s curling team?”  Lola responds, “you bet I am. Can’t wait to see you tonight, dreamboat.”  Joe, never one to miss a trick, replies, “I didn’t know you were a dude. Sorry, but I’m not into that sort of thing.”

Lola is crushed. Joe was so adorable. Lola is now hurt, angry and offended that Joe refused to go on the date solely because Lola was a biological male who identified as a woman. There was no other reason for Joe’s cancelling the date. That’s sex discrimination.

The college had a disciplinary policy that held that no student could engage in sex discrimination in violation of Title IX.  Joe is charged with sex discrimination. Both sides tell the truth. Joe is found responsible and sanctioned. And indeed, as discrimination based on gender identity is now within the prohibitions of Title IX, Joe’s refusal to go on a date with Lola is, without a doubt, sex discrimination.

And if we were to take the hypo a step farther, get past the date (which went spectacularly well), and ended in Lola’s dorm room, whereupon Joe learned of his mistaken assumption and revoked consent, boom. Same issue.

Is this likely? Who knows. Lola would have to make the complaint. Almost all schools now have policies against sex discrimination. Is there a rational basis upon which to distinguish some discrimination against gender identity but not other forms of discrimination? None has, as yet, been established.

The problem here is that gender identity discrimination raises very different problems than other forms of discrimination. Perhaps they can be worked out, rules established, that would prevent a problem like this from happening. But as of now, there are no such rules, and there is nothing to prevent this scenario from occurring.

36 thoughts on “Sexsplaining, Transgender Edition

  1. Jim Tyre

    Joe meets Lola, and they take a shine to each other.

    You’re showing your age, Scott. You may need to ‘splain that for your younger readers.

  2. MNC

    How about this: Joe meets Lola, they take a shine to each other. Joe later finds out that Lola believes in a religion he doesn’t like or has ancestors from an ethnicity he dislikes. Same problem, or is there a difference in the laws that I’m missing?

    1. SHG Post author

      Title IX only prohibits sex discrimination:

      No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

      1. MNC

        Title VI, 42 U.S.C. § 2000d appears to use the exact same language, though. I say appears to because I’m not a lawyer, so I could easily be completely wrong. That would certainly lend weight to your blog post about adding a default mens rea requirement, though…

        1. SHG Post author

          Mens rea applies to crimes, not regulatory statutes. Title VI is a regulatory statute that applies to “federally assisted program,” not a crime. It also isn’t enforced by the Department of Education, which Title IX is, such that colleges and universities receiving federal funds are directly subject to the DoE’s agency “guidance.”

          By the way, this is why having access to law on the internet isn’t the same as being a lawyer.

          1. MNC

            The mens rea part was a comment on my possible (now evident) lack of understanding.
            I’m well aware that reading law and commentary on law on the Internet can’t ever get one anywhere close to the understanding of legal issues you acquire by actually studying law.

            Your reasoning makes sense now, I missed that difference between Title VI and Title IX. I could only try to argue that in your example, wouldn’t it be sex discrimination even if you left gender identity out of the equation? If Lola just had a gender ambiguous name, or perhaps a foreign male one that Joe didn’t identify as such, there’s still a distinct possibility Joe could mistake him for a woman even if Lola identified as a man. Which is to say, if sexual orientation isn’t a defense in this case, wouldn’t Title IX already contain that problem under the previous definition of sex as biological sex? On the other hand, if it is, that would raise the question of whether (not) being attracted to trans people qualifies as a valid sexual orientation – and whether the state gets to define what qualifies as a valid sexual orientation.
            For that matter, what if instead of Lola, we had James approaching Joe. Joe refuses, saying “Sorry, I’m not into men.”

            1. SHG Post author

              No. Sexual preference is different from gender and gender identity, as least until the next “guidance” letter.

            2. Patrick Maupin

              So what, exactly, keeps James from deciding 3 months later that he meant to be presenting as female when he approached Joe and was turned down?

          2. Mike

            Is the date, and/or sex, a federally assisted program? Is it an education program or activity receiving Federal financial assistance?

            If the feds are footing the bill for dinner then sure you have to go out with who they say.
            Who is paying for the date?

            1. SHG Post author

              The DoE OCR has given “guidance” that everything that touches a student’s life affects their enjoyment of the benefits of an education program. But they still won’t pay for dinner.

  3. Patrick Maupin

    Poor Joe should have been reading SJ instead of playing videogames, so he would have known to say “Sorry, Lola, it can’t possibly work — I hate curling and everything it stands for.”

  4. Scarlet Pimpernel

    Your sexism is showing.

    If women are not defined by conformation to stereotypical female behavior then the same applies to the transgender population and their is nothing that says, nor could it, that Lola has to conform to stereotypical female behavior or dress. Lola can decided to grow a 3 foot beard and start watching Duck Dynasty and still would qualify for as much protection and deference as Brice Jenner in the Caitlyn garb in any claim of womanhood.

    1. SHG Post author

      If women are not defined by conformation to stereotypical female behavior then the same applies to the transgender population…

      Begging the question. That’s not the law and it’s a non-sequitur.

    2. Patrick Maupin

      I think SHG gives Lola exactly as much deference as he gives Jenner. If Jenner enrolls in a community college and gets turned down because another guy “only likes real women” then it’s exactly the same issue.

  5. OEH

    This is an interesting example, but is it enhanced by the fact that one student is transgender? Wouldn’t it present the exact same question if Joe refused to date cis-gender Lola based on her gender alone?

    1. SHG Post author

      Why yes, you’re quite right that it could happen. However, if you run through the scenario, it’s set up so that the only factor that could explain Joe’s reaction is Lola’s being transgender, rather than the million other potential reasons that one person decides to avoid the amorous interest of another. I suspect proof of unlawful discrimination would be otherwise impossible to prove.

      1. Patrick Maupin

        Meh. Someone in your esteemed profession will accept big bucks to try to spin a different explanation:

        “I didn’t know you were a dude.”

        Statement of fact. Uttered due to the surprise factor, but no bearing on real feelings.

        “Sorry, but I’m not into that sort of thing.”

        My client hates curling, due to an unfortunate early-life encounter with Canadian-Americans.

        1. Andrew Cook

          “I’m not-sorry but we don’t allow legal counsel at these things, only peer advocates who are refrained from speaking on behalf of the respondent. Now, go outside while we determine how he should be punished for his predetermined guilt…”

  6. Adam

    This may be exactly what OEH was saying, but:

    Discrimination on the basis of sex is already prohibited. If James is a gay man and propositions Richard, would Richard saying “I don’t want to date a man” be sex discrimination? (Have a straight man propositioning a lesbian if that makes the analogy clearer)

    In a “literal meaning of words” sense, I’d argue yes, but it’s hard for me to believe Title IX would be that ridiculous, even as a longtime SJ reader.

    1. SHG Post author

      This is where the “problem” becomes manifest. Title IX has yet to be interpreted to prohibit discrimination on the basis of sexual preference, so it’s fine to say you’re not into dudes. But now that it has been interpreted by the DoE to mean sexual identity, trans discrimination become a violation. This is why the new “definition” presents inherent doctrinal inconsistencies.

      In other words, trans isn’t the same as sex, and once you go trans, all sorts of unanticipated, unintended lines get crossed.

      1. MonitorsMost

        Guidance letter? The Ninth Circuit don’t need no stinking guidance letter! Videckis v. Pepperdine, __ F.Supp.3d __, 2015 WL 8916794 (C.D. Cal December 15, 2015)

        1. SHG Post author

          Wow, that’s some batshit crazy stuff.

          Pepperdine cites to opinions from various federal courts that state categorically that sexual orientation discrimination is not covered under Title IX. (See MTD at 6-14.) However, the Ninth Circuit has held only that “an employee’s sexual orientation is irrelevant for purposes of Title VII,” and that “[i]t neither provides nor precludes a cause of action for sexual harassment.” Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th Cir. 2002) (en banc) (plurality opinion).1 Furthermore, the cases upon which Pepperdine relies, for the most part, dismiss analogous sexual orientation-based claims in a cursory and conclusory fashion. See, e.g., Johnson v. Eckstrom, No. C-11-2052 EMC, 2011 WL 5975039, at *5 (N.D. Cal. Nov. 29, 2011) (stating, simply, that neither Title VII nor any other federal law protects against discrimination on the basis of sexual orientation”). The Court rejects the reasoning of these cases, which do not fully evaluate the nature of claims based on sexual orientation discrimination. (Emphasis added.)

          So every court everywhere, including the 9th Cir., ruled the opposite way, but they’re WRONG!!!

      2. B. McLeod

        I think this will, in fact, have to be the federal government’s position. Given that EEOC has already taken the position that co-workers are required to use the transpersons’ choices of pronoun (lest they give offense), it follows that sexual acceptance for actual, sexual activity will also be federally mandated. Otherwise (just as in using “wrong” pronouns), co-workers will be offensively refusing to honor the transgender persons’ subjectively declared “gender identities.” This is simply another indication of the extent to which the forces of “political correctness” have failed to think through the consequences of their “logic.”

        1. SHG Post author

          It was anticipated that the Supreme Court would grant cert in United Student Aid Funds v. Bible and finally kill Auer/Seminole Rock deference, so radical agency capture would no longer bind judicial review. But they punted yesterday. Between Loretta, Vanita Gupta and Catherine Lhamon, there’s no telling what rules they may decide to create over the next few months that will wreak havoc, and whether Congress or courts will take action before it becomes normalized and entrenched. Heck of a way to rule a country.

          What are you preferred pronouns, by the way?

        2. MonitorsMost

          Sweet Loretta Martin thought she was a woman,
          But she was another man.
          Loretta went to the Department of Justice,
          Now we have to call her “ma’am.”

  7. Nowan Uno

    There is another hypothetical you didn’t include. Joe goes on the date and ends up having sex with Lola who later regrets it and claims that it was rape in a complaint to the school. Damned if you do, damned if you don’t.

    Still doesn’t Title IX only apply to discrimination on the part of the state?

    1. SHG Post author

      There are a million hypotheticals I didn’t include. That’s because this hypo was about the issue presented in the twit. Focus. And no, Title IX does not only apply to discrimination on the part of the state. It may well be argued that it should, but that’s not the state of the law.

      1. Nowan Uno

        It’s less a question of whether it should or not than whether it was intended to be applied in that context.

        1. SHG Post author

          Not the slightest clue what you’re trying to say. For future reference, you might approach something cognizable if you use nouns. Not that anyone gives a shit, but at least you would have a fighting chance of approaching a comphrensible thought. Thanks for playing.

  8. Osama bin Pimpin

    There is an ongoing debate among porn fans whether it’s impermissibly racist that some white porn chicks refuse to perform with black porn dudes. At least that’s what my friend who is a porn fan told me.

  9. rjh

    A metacomment on the whole issue:

    Back in the 60’s staffers brought a proposal to LBJ, and he asked one question:

    “Is this supposed to be an election issue? or result in a law?”

    You take two utterly different approaches. Election issues should not be resolvable, should inflame the voters that you want to vote, etc. You make press releases, make proposals, issue discussion points, draft regulations, etc. with these as the goal. If you want a workable law or regulation you take an entirely different approach.

    This is clearly being driven as an election issue. So any efforts to resolve this sensibly are being sabotaged and fought. It should in the actions by both parties, the administration, their opponents, and commentators.

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