The definition of “sex” seemed simple when Congress passed Title IX in 1972, outlawing sex discrimination in education. Webster’s Third New International Dictionary described it as “the sum of the morphological, physiological, and behavioral peculiarities” that distinguish male and female for reproductive purposes.
This year the Fourth Circuit Court of Appeals subtracted “morphological” and “physiological” from the equation, agreeing with the Obama administration that the term “sex” may be nothing more than an individual’s “internal sense of gender.”
The court’s Jan. 27 decision kicked off a predictable culture war, with liberals saying it was long overdue and conservatives saying it was nonsense to allow gender identity to determine which bathroom an individual could use.
“Virtually every civilization’s norms on this issue stand in protest,” wrote Fourth Circuit Judge Paul Neimeyer, who dissented from the January decision and last week urged the U.S. Supreme Court to take up the question of whether gender identity trumps biological sex when it comes to federal law.
Hiding within Neimeyer’s bombast are some very real problems with the arguments on both sides. Conservative critics too quickly dismiss the idea sex discrimination can include discrimination against people over how they look and act, for example, when courts have upheld suits for years over same-sex harassment and discrimination based on the failure to conform to gender stereotypes.
But lawyers representing Gavin Grimm, the transgender student in the Fourth Circuit decision, also cleverly limited their case to whether Grimm could use the bathroom of his choice. Neither they nor the Fourth Circuit majority addressed the thornier issue of locker rooms and showers, where the obvious physical differences between genetically male and female students pit the privacy rights of transgender students against the privacy rights of everyone else. Under the Obama administration’s rules, schools can’t shunt transgender students off to a unisex facility.
“I always said to clients, `put in a separate bathroom with a door,’” said Rosanna Sattler, a partner with Posternak Blankstein & Lund in Boston who focuses on employment law. “Now that’s a huge problem.”
Part of the problem with the fight over sex is people are muddling two separate legal issues when they argue about the term, said William Eskridge, a professor of constitutional law at Yale Law School who helped shape the legal debate over same-sex marriage. One issue is whether measures affecting transgender individuals can be discrimination under Title IX and Title VII, the broader federal antidiscrimination statute.
In a word, yes. Think of an employer who refuses to hire Protestants, Eskridge said. Clearly, that would violate the Title VII prohibition against religious discrimination. But so would a policy of refusing to hire applicants who had converted from another religion, even though the discrimination wasn’t against a particular religion but the fact that an applicant had switched.
The same principle applies to sex, Eskridge said: Discrimination aimed at people based on their gender characteristics is the same as discrimination based on sex. It is often forgotten that Homer Plessy, the plaintiff in Plessy v. Ferguson, didn’t just argue it was unconstitutional for Louisiana to force him to ride in a “colored” car on the train; he also argued Louisiana was wrong to classify him as “colored” at all when he was seven-eighths Caucasian.
Transgender advocates use this sort of argument to justify making bathrooms available to individuals based on their gender identity. It is up to those individuals, not the state, to determine the appropriate place to pee or change clothes or shower, they say.
“Requiring transgender people to use facilities that don’t match their gender identity creates the risk of outing them,” said Ilona Turner, legal director of the Transgender Law Center in Oakland, Calif. “All of a sudden people who didn’t know and don’t need to know he’s transgender will know that very personal information about him.”
The Justice and Education Departments agree, saying in a May 16 “Dear Colleague” letter to school officials that “sex” now means gender identity and educational institutions risk losing federal funding if they restrict students to bath and locker rooms based on the sex listed on their birth certificate.
But the Obama administration’s insistence that transgender students use the locker rooms of their choice raises the second issue in the fight over sex. Can schools and other institutions discriminate against transgender students anyway if they have other well-founded reasons for doing so?
Take college athletics. The “Dear Colleague” letter explicitly states students “of the same sex” means “of the same gender identity,” when it comes to athletics. Yet it doesn’t explicitly condemn the National Collegiate Athletic Association’s policy on transgender athletes, which allows transgender students to play on any team consistent with their birth sex but prohibits male-to-female transgender students from playing on female teams unless they’ve had a year of testosterone suppression therapy. If they join earlier than that, it becomes a “mixed team” ineligible for participation in NCAA championships.
The rule reflects “sound medical science,” the NCAA says, and NCAA policy otherwise encourages students to participate in sports based on their gender identity. But the asymmetrical treatment of transgender women on female teams could raise legal challenges in the future.
So will locker rooms and showers. While male students may not object to women parading through their shower rooms in the nude, and colleges have had unisex bathrooms in dorms for years, some schools and employers may yield to complaints about undressing in front of transgender individuals who still have the anatomy and physical appearance of the other sex.
“You can say `yes, it’s sex discrimination,’ but also `here is the reason the state is cordoning off bathrooms based on appearance,’” said Eskridge. “Is there any basis for actual concern for that? I’ll leave it to the evidence gatherers.”
So the definition of “sex” depends on the question you’re asking. It’s gender identity if someone is applying for a job, or, according to the Obama administration, participating in educational activities. It might be something different when it comes to female sports teams and shower rooms. Judges will make the ultimate decision.