Today, the Obama administration issued a “decree” not simply banning discrimination against transgender people, but also effectively mandating affirmative accommodation of them in terms of things like access to locker rooms and bathrooms. Its reasoning is dubious, and could lead to additional liability for private employers under Title VII (as past bathroom disputes have led to lawsuits and substantial settlements against businesses), because the Obama administration’s reasoning is not education-specific, and Title IX and Title VII are often (but not always) interpreted the same.
It did so pursuant to Title IX, a federal statute that only bans sex discrimination in education. The Education Department’s Office for Civil Rights, where I used to work, now interprets the federal ban on sex discrimination as also covering discrimination based on gender identity: “Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.”
This interpretation is very strange, because one’s internal gender identity is not always the same thing as one’s sex. That’s why transgender people go to the trouble of getting a sex change: They are not the sex they want to be.
It’s also why legislation has been proposed in Congress to expand federal antidiscrimination laws to cover gender identity, rather than just sex. Congress has declined to pass such legislation. But now, the Obama administration has effectively legislated on its own, by decree, in violation of the Constitutional separation of powers, which vests legislative power in the legislative branch, not the executive branch.
This decree is a bureaucratic overreach, because Title IX forbids sex discrimination, not discrimination based on gender identity, and it forbids discrimination, not failure to accommodate. Courts have rejected efforts to convert federal antidiscrimination statutes into duties to affirmatively accommodate, as they made clear in upholding California’s ban on race- and gender-based affirmative action against Title IX and Title VII preemption challenges. (See, e.g., Coalition for Economic Equality v. Wilson, 1997). While the Constitution may provide transgender people with certain additional rights, the Obama administration lacks jurisdiction over such matters under the Title IX statute.
I am sympathetic to many requests made by transgender students as a policy matter. It makes more sense for a male-looking transgender student to use the boy’s restroom, or a female-looking transgender student to use the girl’s restroom, regardless of their biological sex. Requiring otherwise would likely increase, rather than reduce, student discomfort. The last thing we need is bathroom police. But federal bureaucrats only have jurisdiction only to enforce Title IX, not to enforce federal policy. Title IX does not mandate national central planning for bathrooms.
Moreover, it appears that the Obama administration will require schools to allow even male-looking biologically-male students to use women’s locker rooms, not just female-looking transgender students, since it warns schools that its guidance covers even a student who “does not conform to stereotypical notions of masculinity or femininity,” and its demands expressly cover “locker rooms,” not just “restrooms.” It also warns that schools “may not require transgender students ... to use individual-user facilities when other students are not required to do so.” It also covers dorm rooms, perhaps impeding the opportunity of students to select a roommate of their own biological sex by stating that a “school must allow transgender students to access housing consistent with their gender identity and may not require transgender students ... to disclose personal information when not required of other students.”
This demand may spark privacy lawsuits against school districts by the parents of female students. An Illinois school district that complied with similar demands by the Office for Civil Rights is currently being sued (along with the Obama administration) by a group of parents of teenage girls.
As law professor Eugene Volokh notes, even liberal Justices like Ruth Bader Ginsburg once emphasized that constitutional privacy rights require that separate bathrooms and locker rooms be provided for students of different sexes. Similarly, the Title IX statute itself allows sex-specific facilities, providing that “nothing contained [in Title IX] shall be construed to prohibit any educational institution ... from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. The Education Department’s regulations implementing Title IX accordingly have for more than 40 years permitted the provision of “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33.
The Obama administration’s position today goes beyond what even liberal judges mandated in the past, out of misguided deference to Obama administration bureaucrats, since it applies not simply to restrooms, but to locker rooms, where the privacy ramifications are much greater. As Professor Volokh observes, on April 19, an appeals court ruled in G.G. v. Gloucester County School Board that “schools must let biologically female students who identify as male use men’s restrooms.” The court in that case said that “only restroom use is at issue in this case,” not locker rooms.
That 2-to-1 ruling by the Fourth Circuit Court of Appeals (with Obama appointees in the majority)
… didn’t hold that this is required by the Constitution, but rather deferred to the Education Department’s interpretation of the department’s regulation on the subject. (The regulation, which interprets the federal Title IX provisions, and which generally forbids sex discrimination but allows sex-segregated restrooms, applies to any schools that get federal funds.) The court also held that the high school’s proposed accommodation of G.G., which would have allowed G.G. (as well as other students) to use three single-stall unisex restrooms that it created, was inadequate, because it still barred G.G. from using the ordinary multi-stall boys’ restrooms.
G.G., who is biologically female and has not had gender reassignment surgery, but identifies as male, would thus be able to use the boys’ high school restroom.
Thus, the court upheld the Education Department’s 2015 opinion letter redefining “sex” to include not just one’s biological sex, or sex after gender reassignment surgery, but also your self-identification as being a member of the sex opposite your physical characteristics. In dissent, Judge Paul Niemeyer argued that this new definition of “sex” is internally inconsistent, “illogical and unworkable,” and will lead to constitutional privacy violations in future scenarios involving locker rooms.
A former Deputy Assistant Attorney General in the Office of Legal Counsel points out some of the internal inconsistencies in Title IX created by the Education Department’s interpretation in commentaries you can find here, at Parts 1 , 2 , 3 , 4 , 5 , and 6.
As Professor Volokh notes, the judges in the majority “didn’t squarely consider the argument that this would undermine the constitutional privacy rights of other students; some courts have said that there is a constitutional right not to be seen when undressed by members of the opposite sex.” Failing to consider the issue may well have been a mistake. Under the canon of constitutional doubts, a court is not supposed to defer to an agency’s interpretation of the law if it would raise even potential constitutional problems. See Miller v. Johnson, 515 U.S. 900, 923 (1995) (rejecting interpretation by Justice Department’s Civil Rights Division based on potential constitutional violation that would have resulted); NAMUDNO v. Holder, 129 S. Ct. 2504, 2513 (2009)(same).
This ruling was wrong to allow bureaucrats to summarily redefine what sex means, since that is the most foundational term in the statute, and thus is not a mere detail whose meaning Congress would have delegated to bureaucrats, especially to change without notice and comment. By redefining “sex” for purposes of the bathroom regulation, they effectively redefined it throughout the statute. As the court itself put it, “‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.”
The court deferred to an Education Department 2015 opinion letter reinterpreting what “sex” meant in its bathroom regulation, to instead mean one’s internal “gender identity.” That letter, like today’s decree from the Obama administration, never went through notice and comment. As a result, the Education Department never had to think through and address some of the practical problems identified by school districts and state officials in their briefs with the court (such as the potential pitfalls of relying on students’ asserted self-definition, rather than objectively-verifiable gender characteristics, such as biology, or sex-change surgery), which it would have had to address if it had allowed school districts to comment on the requirements contained in the letter.
The court purported to rely on Auer deference, which sometimes allows an agency to avoid notice and comment when it is providing guidance about the meaning of its own regulation, rather than a statute passed by Congress. But the word “sex” appears not just in the bathroom regulation, but the statute itself. Thus, by redefining the word “sex,” the Education Department was not simply reinterpreting its own regulation, but redefining the statute. But that could legally be done, if at all, only after notice and comment—which never occurred. The court was wrong to allow that. It was like letting the tail wag the dog.
Effectively, the court applied not Auer deference, but Auer deference squared, going well beyond the degree of deference allowed by the Supreme Court’s Auer and Seminole Rock decisions.
And redefining what sex means may simply be beyond the authority of the Education Department to begin with, even with notice and comment. Just as Congress does not “hide elephants in mouseholes,” Whitman v. American Trucking Ass’n, 531 U.S. 457, 468 (2001), it does not delegate to agencies the ability to rewrite basic statutory terms simply by using one of those terms in an obscure bathroom regulation that imposed no obligations on regulated entities (and thus could not be challenged by them), and then later reconstruing it to have a very different meaning (especially when the regulation did not implement agency policy preferences that it is allowed to rethink, but rather was adopted to accommodate constitutional privacy rights outside the agency’s control).