The Fourth Circuit refused to rehear the G.G. v. Gloucester County School Board case, where it held that the court was obliged to give Auer deference to the Department of Education, Office of Civil Rights’ “guidance” that sex discrimination under Title IX included discrimination on the basis of sexual identity.
While this wasn’t quite the approval of Title IX’s coverage of transgender discrimination that many have made it out to be, it certainly wasn’t a rejection of it either. The majority of the panel could have held OCR’s guidance unreasonable, but it didn’t. Judge Paul Niemeyer, in dissent, refused to defer to OCR on that basis.
In a brief dissent to the en banc refusal, Judge Niemeyer wrote:
Somehow, all of this is lost in the current Administration’s service of the politically correct acceptance of gender identification as the meaning of “sex” — indeed, even when the statutory text of Title IX provides no basis for the position. The Department of Education and the Justice Department, in a circular maneuver, now rely on the majority’s opinion to mandate application of their position across the country, while the majority’s opinion had relied solely on the Department of Education’s earlier unprecedented position.
The first portion of the paragraph relates to his “moral” concerns about how “forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom.” Such concerns are dismissed by those who don’t share them, but are of no greater, nor lesser, value than the opposite “moral” concerns.
However, the second portion of the paragraph reflects the peculiar conundrum created by the fact that this issue comes via executive fiat, OCR’s declaring something to violate Title IX out of thin air, and the court’s deferring to the agency’s supposed “expertise” under Auer. Thereupon, the Fourth Circuit opinion, that relies entirely on OCR’s “guidance,” is held up as the precedent to show that OCR didn’t pull this out of its butt, but is merely promoting the law as held by the Fourth Circuit. Which was predicated upon OCR’s guidance.
This is circular reasoning at its finest, and as valid as circular reasoning gets. Which means, Niemeyer is right and the argument is nonsensical. But that’s what you get when trying to manufacture law out of nothing.
For people who agree with it, they not only squint and sing “lalala” at the top of their lungs, but they have created a false narrative that this is nothing new, but well supported by law, including approval by the Supreme Court. Any mention of transgender in a decision, despite a holding unrelated to the issue raised here, and the decision magically becomes support for the proposition that this has been the law all along.
This, unfortunately, has snookered some into believing that the law has always been that gender identity is covered by sex discrimination, and to repeat the narrative rather than scrutinize the false claims.
Alarmist rhetoric aside, Niemeyer is correct when he says that Title IX, as written, doesn’t mandate that schools receiving federal funding not discriminate on the basis of a person’s gender identity. It only says they can’t discriminate on the basis of sex.
But the Obama administration, relying on Supreme Court decisions and other precedents going back several years, has interpreted the statute to include protections for gender identity, and issued guidance to schools to provide accommodations for trans students. When Niemeyer’s court ruled in the Grimm case, it deferred to the government’s interpretation of its own 2014 guidance.
My old pay, Cristian Farias,* gives away his feelings on the issue by characterizing Niemeyer’s concerns as “alarmist rhetoric.” While I agree with Cristian that they are merely the emotional concerns of those opposing the shift in law (in contrast with the emotional claims of those who support the shift in law), it’s hardly “alarmist” to disagree that this is benign. If they feel otherwise, they’re allowed, just as those who feel the need to end sexual identity discrimination is good enough reason to make up individualized pronouns and befoul the language (see, I can play that game too).
But when Cristian writes that there are “Supreme Court decisions and other precedents,” that strays too far from truth to go unnoticed. The closest the Supreme Court came to transgenders (at least to their knowledge) was in Price Waterhouse v. Hopkins in 1989. Notably, in the 27 years since, no one ever tried to claim that case redefined sex discrimination into transgender discrimination. Until now.
The decision was, in fact, a relatively straightforward sex discrimination case that happened to involve a trans man, whom the Court discussed as a woman, and concluded that she (not he, not xi, not hir, but she) was discriminated against as a woman because she wasn’t appropriately feminine. The holding was that discrimination against women based on gender stereotypes violated Title VII.
Does this mean what they want it to mean today? No. Not really. Actually, not even a little bit, but it is susceptible to being twisted and contorted, largely because the Court didn’t have a reason to explain the obvious back in 1989, because nobody would have imagined that the decision was a blow for transgender rights at the time.
It does, however, lend itself to the argument made today sufficiently to make a superficial connection by ignoring the sex discrimination part and focusing only on the fact that the reason the employee failed to conform with gender stereotypes was that she was transgender. And if that’s the case, then the Supreme Court should have no problem extending its holding the few steps needed to reach that conclusion.
But when all you have is a hammer, everything looks like a nail, and the OCR and supporters of sexual identity coverage in Title IX will use their hammer as much as they can if it serves their cause. Which, aside from those who are abusing their governmental positions to achieve something the law doesn’t permit them to do, is fine.
Frankly, if, after appropriate debate and discussion, so the moralist arguments made by Niemeyer, and the great many collateral issues raised are worked out one way or another, it turns out that gender-neutral bathrooms is the way to go, that’s great. But we shouldn’t get there because a branch of government is exceeding its power, and its supporters are working overtime to create the impression that the courts have considered, and decided, that this is what Title IX provides. It’s not. And playing the circle game to claim otherwise is disingenuous and deceptive.
One must assume that the supporters fear they can’t get a law passed to support this or they would go that route. Instead, they go the route of ramming it down people’s throats and lying that it enjoys judicial approval. That the concern for a little truthfulness is missing is unfortunate, as their cause has issues but really isn’t that far out of the mainstream as to be beyond a decent chance of enactment in the proper course of law. Lying, however, is not the way to get there.
*Cristian’s post is entitled, “Appeals Judge Wants Supreme Court To Put An End To The Trans Bathroom Debate.” While it would do better to have Congress put “an end” to it first, the Supremes doing their job isn’t a bad thing.