In the discussion surrounding the meaning of the phrase “sex discrimination” in Titles VII and IX, Jonathan Adler at Volokh Conspiracy has taken a different and curious view.  Jonathan contends that the phrase is sufficiently textually vague as to give the regulatory agencies charged with implementation of these laws sufficient leeway to provide their interpretation.  It’s not that it’s vague from an originalist or legislative history perspective, both of which are indisputably clear, but from the text itself. Are the words “sex discrimination” unclear?

This matters because administrative agencies are authorized to interpret ambiguous language in the laws they are charged to administer, and their interpretations are entitled to deference. If, as Jonathan argues, this phrase is in need of clarification, then the interpretations contained in EEOC, Department of Justice and Department of Education “guidance” matter. If not, then they’re blowing hot air.

This doesn’t impact the failure to comply with the Administrative Procedures Act in creating regulations, even if they try to call them guidance to circumvent their legal duties, but the issue Jonathan raises is one of statutory interpretation, which applies to all laws enforced by administrative agencies, and not just the Civil Rights Act. It raises some fascinating questions.

While it is fairly clear that Title IX was enacted to prevent discrimination against women, the language is broader than that. Further, if one believes that the plain text of a statute is more important than legislative history (as I do) there is a reasonable argument that it is unclear how a prohibition on discrimination “on the basis of sex” should apply to transgender individuals. So even if one is inclined to think the interpretation offered by O’Connor here (and Judge Niemeyer in his G.G. v. Gloucester County School Board dissent) is the better one, that does not mean the federal government is precluded from putting forth an alternative view

As I noted in a prior post:
There is [a] 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. The problem, however, is that the Education Department has never issued such a regulation, and has instead sought to sidestep this process through letters and “guidance” documents.

So should the federal government ever go through the process of issuing regulations that define and apply Title IX’s prohibitions in this way, such a rule could prevail.

Is there a “serious argument” that Title IX is “sufficiently ambiguous”? In is prior post, Jonathan refers to the G.G. ruling by the Fourth Circuit:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with deference to gender identity.

Until a week ago last Tuesday (okay, a bit of hyperbolic facetiousness on my part, but it’s fair to say “of very recent vintage”), the phrase “sex discrimination” was universally understood, entirely unambiguously, to refer to biological males and females. But this passage raises an interesting problem, whether the standard by which males and females are determined can, through artful argument, be altered from clear and unambiguous to some new, shifting standard based on the adoption and alteration of words by those seeking change? Can ambiguity be manufactured by deliberately muddying up clear waters?

The problem for Congress is that the only means by which it can enact a law is words. At the time a law is enacted, it says, using words, what Congress decides to enact. At the time, words have meaning, and so they parse them, argue over them, and select the words that reflect what the law should say. If these words, clear and unambiguous at the time of enactment, can be morphed into vagaries by advocates seeking to change the meaning of a law Congress enacted, how can Congress fashion a law with any certainty that it will be implemented for the purpose enacted?

This isn’t to say that Congress does a great job with all laws. There are times Congress gets lazy, enacts laws with vague words with the intention of having the implementing agency figure out the details later. Sometimes it’s politically untenable for Congress to say what it really means, so it dumps the problem elsewhere. There are times when Congress intends that laws shift over time to match changing societal norms. Congress, in other words, doesn’t help itself when it comes to clarity.

But in this instance, the language was clear and unambiguous, until advocates, quite smartly frankly, seized the words for their own purposes and crafted a definitional shift to make them ambiguous.  Can they do that? If advocates use a clear word to mean something it never meant before, over and over, and persuade those who share their policy views to similarly use the word to mean something very different than it ever meant before, change the substantive meaning of a law to suit their political agenda?

Abraham Lincoln famously argued:

How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.

Transgender advocates have called “sex discrimination” a vagary that includes gender identity discrimination. Congress never meant that to be the case, but the crack exploited is what constitutes male and female? Is it biology, as it was universally understood until very recently, or is it whatever a person feels him or herself to be, as the administrative agencies have redefined it?

And lest this be seen as only affecting the phrase “sex discrimination,” variations of this argument can be just as easily applied to almost any phrase in Title VII, which prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” These are very simple words. If they were subject to hijacking by future generations of advocates who would seize them for their own, change their definitions, create what was clear in 1964 to be ambiguous in 2016, would this law have passed Congress?

It’s reasonably certain that no one in Congress in 1964 would have agreed to enact Title VII had they been told that it would someday be used to force boys and girls to become unwilling roommates or share showers. Is that the message, that no law is safe from future political agendas? If ambiguity can be manufactured out of clarity, then there is no way to assure that the law enacted is the law to be applied in the future. Words are all we have to work with. When we lose them, communication of law is reduced to meaningless.

Update:  Jonathan responds at VC:

How can “sex” be ambiguous? For starters, the word “sex” is ambiguous insofar as it does not always resolve whether someone is a man or a woman. Reference to biological sex or genitalia may do the trick in the vast majority of cases, but that’s not enough. As the U.S. Court of Appeals for the Fourth Circuit noted in G.G. v. Gloucester County School Board, there are individuals who are not so readily classifiable (intersex individuals, those born with X-X-Y chromosomes, etc.). So there is some latent ambiguity as to how this seemingly clear word applies in such cases, and that’s the sort of ambiguity an agency may resolve under Chevron.

This has been thrown into the mix by advocates from the outset, but it’s a red herring, first because it’s not what they’re really talking about, it’s not urged as the parameter for the test (nobody argues that this should only apply to intersex individuals) and it’s an anomaly to an otherwise universal rule.

That an exception exists doesn’t make the rule invalid. And if this was really the concern, then the “Guidance” would deal only with the intersex issue. But that’s not the case at all.

To return to the subject at hand — DOE’s transgender policies — it is not self-evident how the word “sex” should apply to an individual who is transitioning. That is, as Title IX lacks a definition for the relevant terms, it is not unambiguous as to the point at which a transitioning individual should be treated as one sex as opposed to another, and insofar as transitioning can be a long, drawn-out process with many steps, there is an ambiguity to be resolved. Indeed, this is the sort of ambiguity the Chevron doctrine was birthed to address, only there the question was the meaning and application of the word “source” instead of “sex.”

Whether it’s accurate to say that Chevron deference was birthed to address medical/surgical procedures that didn’t exist at the time a law was enacted is a dubious proposition. Chevron deference exists to empower an agency to implement a law as written, not to fundamentally rewrite it in light of future scientific breakthroughs.

Reference to biological sex or genitalia is completely sufficient. It’s just not what advocates want it to be. That it fails to conform with the desires of advocates doesn’t create an ambiguity, just an issue that, if advocates want it to be changed from what the text says, should go before Congress.

Edit: A commenter at VC raises Christine Jorgenson, who was the first person to undergo sex reassignment surgery in 1951 in Copenhagen. From this, he asserts:

It is thus likely that legislators were aware of the issue in 1972, and could have written the regulations denying trans gendered persons protection, but chose not to.

Putting aside the commenters date issues, as Title VII was enacted in 1964, Jorgenson was such a monumental outlier at the time that everyone in America knew who she was. Even so, in crafting legislation, the exception doesn’t overcome the rule, so if the plain meaning of sex was to be altered by this extreme exception, it would have been the other way around, that Congress would have said so. The tail does not wag the dog.

GW lawprof John Banzhof offers another interesting point: Title VII includes race as well as sex. What if a white person identifies as black? It can happen, you know.