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:
Will it violate campus anti-disc rules to refuse to date, have sex, w/ trans person based on gender identity? Think about it.
— Scott Greenfield (@ScottGreenfield) May 15, 2016
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.