The Transgender Strawman Is Stayed

The Supreme Court granted a stay of the Fourth Circuit’s decision in G.G. v. Gloucester County School Board, holding that under Title IX, Gavin Grimm, a transgender man, was entitled to use the bathroom of his choice.  The circuit had earlier refused to stay its decision.

stay

This puts the case in a holding pattern, maintaining the status quo ante, pending the petition for cert, and the Supreme Court’s decision on whether to grant it, which is a significant setback for the effort.  Had the Fourth Circuit’s decision gone forward, it would have become a fait accompli, serving dual purposes.

First, it would show that some of the fears raised about allowing a transgender person to use a bathroom based on gender identity didn’t come to pass. Second, it would normalize this change. As with gay marriage, once it’s real, it’s hard to make it unreal. It would just be.

But the issue in the case can be viewed in two distinct ways. From one perspective, it’s about discrimination against transgender people, a high school student in this instance, who has become the test case for an issue that would radically alter the public perception and tolerance of trangender people.

From another perspective, the case is about an administration circumventing the law, the methods of government, checks and balances, to force its social justice agenda upon a nation through unilateral fiat. At Volokh Conspiracy, Jonathan Adler provides an excellent discussion of the problems with deference, both Chevron and Auer, involved in this case, and why the Fourth Circuit’s decision, aside from whether or not you support the outcome, is wrong.* The holding was based on deference, not that the circuit independently concluded that “sex” in Title IX included gender identity.

In advance of the argument for the stay, ACLU lawyer Joshua Block had been hard at work pumping the transgender perspective on this case.  He’s got a horse in the race, and this was near and dear to him.  His arguments, on the other hand, were generally twisted and disingenuous. An example is his twit of this stay decision:

The decision, obviously, wasn’t a personal attack against Gavin Grimm, nor a determination that Grimm would personally “inflict” harm on anyone. No doubt Block knows this, but he’s so emotionally caught up in the issue that detachment is impossible.

On the eve of argument in a related case dealing with North Carolina’s HB 2, Chase Strangio engaged in a similar indulgence of the argument to be made.

Like so many anti-trans laws, policies and messages we are confronted with, HB 2 was animated by the lie that the state needed to protect women from men in women’s bathrooms. As I have said elsewhere, of course, “when a transgender woman uses a women’s restrooms there are still zero men — biological or otherwise — in that restroom. Transgender women are women; transgender men are men.”

Unlike the 4th Circuit, HB 2 raises very different issues, as it came about in a very different way. Still, is it wise to argue that the position of the opposition is a lie?

It is that premise that is so dangerous. The idea that trans people should be shamed into self-exile or government imposed banishment from public life is what teaches us all — trans and non-trans — that it is okay to mock, dehumanize and in too many cases, hurt and even kill trans people.

That is unacceptable and we are in court fighting this law and the anti-trans premise that fueled it.

While an excess of passion born of personal emotions may be forgivable, it’s not so easily ignored when it’s proffered as a legal position.  The State of North Carolina went over the top in reaction to the City of Charlotte’s decision to accommodate the needs of transgender folks. In the same vein, the Departments of Justice and Education went over the top in their reaction to ram their unwarranted extension of authority down North Carolina’s, and America’s, throat.

Strangio’s characterization of the issues, and the opposition, are nonsensical. Some have raised perverts in the bathroom as an argument, but that’s an outlier for the thinking challenged. Reasonable people recognize that this is an unserious argument, only likely to persuade the thinking challenged.

When issues are on the table that evoke strong passions, arguments tend to get increasingly crazy and hyperbolic, and the arguments made by those advocating for change become increasingly disconnected from the legal issues at hand.  That emotions run hot is understandable, but does nothing to illuminate either the problems or the issues. Screaming about strawpersons is an effort to rally support within the team, to confuse those who aren’t familiar and to vent one’s frustration.

What it does not do is enlighten anyone as to the legal issues at stake or persuade anyone with a modicum of knowledge that your position is legally sound and correct. A stay was granted in Grimm because once the Fourth Circuit’s ruling is enforced, there is no unenforcing it.

Until this rather radical change in culture is decided, the status quo should remain intact.  It’s not that Gavin Grimm will inflict damage on society or his high school. It’s that the decision that this is what the law is should come before the remedy.  And in the meantime, the proper place for a decision of this sort to be made, Congress, remains uninvolved.

* Jonathan also throws in, perhaps in a bit of Gertruding, the notion that Title IX’s prohibition of sex discrimination is sufficiently ambiguous to give the Department of Education sufficient latitude to interpret it, by the proper methods, as including transgender people.

There is an even more serious argument that the language of Title IX is sufficiently ambiguous that the Education Department could adopt a controlling interpretation in a properly promulgated regulation. Under Chevron, I would expect the Education Department to prevail should it ever issue a rule interpreting Title IX to cover transgender individuals in this way.

I fail to see any such ambiguity. The legislative intent in 1972, that “sex” meant the binary, male/female, distinction, was clear for a couple generations, and that Congress has since refused to modify this definition to mean anything else would appear to be as much confirmation as there could be.

16 thoughts on “The Transgender Strawman Is Stayed

  1. Norahc

    Is there enough in this case that would allow the reigning in of the Title IX interpretation of the Dept. of Education, or is it too narrow for that?

    1. SHG Post author

      It could, but it isn’t likely. I would suspect the Supremes will deal with the lowest hanging fruit, the deference mechanics issue, rather than the interpretation that DoE OCR has chosen to impute to Title IX.

  2. Jim Tyre

    It’s troubling that Justice Breyer provided the necessary fifth vote “as a courtesy.” SCOTUS has a job to do, even when in recess. All the Justices should do their job. (Yes, I have an opinion about the case itself, but my comment here is independent of that opinion.)

    1. SHG Post author

      I agree. There should be no “as a courtesy,” and not only did he apparently agree as a courtesy, but he felt the need to say so. That was bullshit, and beneath the dignity of a justice.

  3. Erik H.

    The kid who is suing is a minor, and so are at least some the affected kids. I don’t know enough about this area of law to even guess: Does that have an effect here, or is the issue age-independent?

    1. SHG Post author

      That GG is a minor is irrelevant to the issues involved, but makes him an excellent choice of plaintiff.

  4. Stephen

    Eh – he has no facts or law so he’s pounding the table. If it is his client’s ultimate desire to get rid of the NC law, then he should be making every argument he ethically can to the Court and he should presenting this to the public in such a way that, if (hopefully when) he loses in Court there is enough public outrage to persuade the N.C. legislature to repeal the law or the US Congress to amend Title IX. That’s effective and zealous advocacy, not necessarily being to emotionally caught up in the issue.

    1. SHG Post author

      There are good argument against HB 2, but you won’t find them in his emotional rant. And yes, that’s terrible advocacy, but an excess of passion comes at the expense of thinking. Because he believes, his emotional arguments become axiomatic because they’re so obvious and undeniable to him. And if this is what is presented to the court, he’ll get crushed.

      1. Sacho

        I believe his plan is (maybe unintentionally) brilliant. A law analysis would convince you and other lawyers, but you’re a minority(ha!). An emotional appeal(the more outrageous, the better) will put this issue on voters’ minds, and thus, indirectly, contribute to getting a law through Congress. Isn’t that the essential endgame?

        1. SHG Post author

          No. The emotional appeal is already out there (have you never heard of SJWs?). There is nothing brilliant about bad arguments, and the choir is already emotionally vested and doesn’t care about reason. Only an idiot would think this silliness significant. Oh wait.

  5. Nigel Declan

    It is disappointing that those seeking to have the courts recognize a legal right that Congress has repeatedly and explicitly chosen not to — a very big ask — seem unwilling to recognize the degree of scrutiny they are necessarily facing in their decision to pursue change through judicial, rather than legislative, means. Yes, the USSC rained on their parade, but perhaps that is a consequence of victory having been declared too early.

    1. SHG Post author

      When you’re fighting a huge uphill battle that matters deeply to you, any victory is worth celebrating. I can’t begrudge them their moment, even if I don’t agree with how it was achieved and think it will ultimately fail.

  6. Jonathan H. Adler

    A quick comment: My point about the text of Title IX is that if one just takes the text, I think there are ways the Department of Education could fold gender identity in to reach the substantive result in this case. If one were to look at other indicia of legislative intent — the legislative history, etc. of Title IX — I agree that this would be harder to do, as the legislative history makes clear that Congress was focused on discrimination based on biological sex and, in particular, on discrimination against women. Here’s the irony: It is generally conservatives who think we should stick with the text, and generally liberals who argue for a broader inquiry into legislative purpose and intent. Thus, each sides preferred approach to statutory interpretation may actually support the other side’s preferred outcome.

    1. SHG Post author

      I see your point, but even from the purely textual perspective, the definition of the word “sex” has only morphed into some vague analogue for gender (as it’s morphed into something beyond binary biological sex to whatever it means this week) in the past few years. Granted, meanings of words change, but the word “sex” was hardly ambiguous until it became untethered from its definition in March, 2015.

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