Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.” The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.
The lawsuit challenges two recent documents from federal agencies. On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.
The lawsuit raises a valid point about the executive departments’ procedural approach to interpreting the laws they enforce. Ever since the DOE issued a 2011 “Dear Colleague Letter” directing educational institutions how to handle complaints of sexual harassment, both lawmakers and activists have been raising concerns about whether the DOE is issuing regulations or guidance without following the requirements of the Administrative Procedure Act. While DOE officials have stated in Congressional testimony that the “Dear Colleague” letters do not have the force of law, the DOE nonetheless investigates schools who do not comply with the interpretations put forth in those letters, and threatens to revoke federal funding for those schools found in violation of DOE’s view of the law. Just last month a student at Colorado State University sued the DOE over its promulgation of a prior “Dear Colleague Letter” without going through the notice and rulemaking process. The Texas case joins that case and others in challenging the way in which these federal agencies have enforced their authority.
While the Texas litigants may be right about the procedural issues raised if the DOJ/DOE creates new law through “Dear Colleague” letters, their understanding of the parameters of federal civil rights law, and of the “Dear Colleague” letter itself is flawed.
The complaint goes through the history of Title VII and Title IX and tries to argue that “sex” under those statutes has always referred to biological sex, and therefore that the interpretation of “sex” to include “gender identity” is a new (and incorrect) addition to these laws. As Title VII scholar Gillian Thomas recently explained, the EEOC’s definition of “sex” under Title VII, and the definition applied by judges across the country, has been evolving since the law was first passed. For example, while the framers of the law may have originally intended only that it prohibit the overt disadvantaging of women, courts now recognize that the law protects men as well as women. Since 1975 sexual harassment has been recognized as a form of sex discrimination under Title VII, and since 1989 Title VII has been held to protect employees against gender stereotyping in the workplace. That last case — Price Waterhouse v. Hopkins — clearly set the stage for the understanding of gender identity discrimination as sex discrimination. As Thomas explains, “The court essentially held that punishing someone for being the wrong kind of woman is just the same as punishing her for being a woman at all. Insisting that there is one right way to be a woman—or to be a man—is sex discrimination.” Treating a transgender woman differently from a cisgender woman based only on either secondary sex characteristics or biological sex at birth, is simply a version of discrimination against the woman for not fitting traditional ideas of what a woman should be. As Thomas says, this understanding of “sex” under Title VII “isn’t revolutionary; it’s a natural step in a process that’s been unfolding for 52 years.”
The same is true, though in a much more recent time period, of Title IX. Title IX jurisprudence borrows heavily from Title VII, and while it is at an earlier stage in its development there is no reason to think that it will unfold any differently than the interpretations of Title VII. Title IX was first viewed mostly as addressing inequities in athletics – requiring schools to provide equal funding and equal opportunities for female and male athletes – but the Title IX prohibition on sex discrimination is now understood to be much broader. Just as the Supreme Court recognized that Title VII prohibited sexual harassment in the workplace, in 1998 and 1999 it held that Title IX requires schools to address teacher on student and student on student sexual harassment. More recently, some courts have started to hold that Title IX prohibits discrimination based on gender stereotypes. The executive branch has long held this view as well: in 2010 the DOJ intervened in a Title IX lawsuit on behalf of my client — a middle school student who was harassed for failing to conform to gender stereotypes. Since then the DOJ has intervened in other litigation and investigated and resolved other cases based on the assumption that sex discrimination under Title IX includes discrimination based on gender identity, including transgender status. In fact, last month the Fourth Circuit Court of Appeals held that Title IX protected transgender students in a lawsuit about which bathroom a student could use. The Texas complaint’s view of the meaning of “sex” in Title IX fails to recognize the way in which the courts and relevant agencies have understood “sex” for years.
The Texas complaint not only ignores the evolution of Title VII and Title IX, but rests a significant portion of its legal claim on an incorrect assertion that the Dear Colleague Letter is not uniform in defining “sex” as the student’s gender identity. The complaint argues that because (in the view of the plaintiffs) the letter treats bathrooms and showers differently than athletic teams, the DOJ/DOE is not simply recognizing that “gender identity” is subsumed under the category of “sex” in the law, but is in fact rewriting Title IX in a way the plaintiffs view as illegal. This assertion is not correct. The letter clearly states, at the outset of the section in question, “[w]hen a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” The letter goes on to discuss particular sex-segregated facilities and activities. In discussing athletics the letter affirms that Title IX does permit sex-segregation in sports, but says “A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.” This language makes clear that while schools can sex-segregate their sports, a student’s self-identified gender identity is determinative of his or her sex. Therefore, a school may have a men’s swimming team, but a transgender man is equally allowed to participate on such a team as a cisgender man.
While it raises a valid concern about the DOE’s practice of issuing guidance documents without following the procedures that are mandated in order to ensure that unelected officials do not overstep the authority designated to them by the elected legislature, the Texas complaint appears to be motivated primarily by moral and social views demonstrating an underlying discomfort with, and misunderstanding of, transgender rights. According to the lawsuit, “[d]efendants have conspired to turn workplace and education settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights.” This introductory statement hints at the common (and unsubstantiated) claim that allowing people to use the bathroom that corresponds with their gender puts children at risk of assault. It will be interesting to see what the court does with this case, and what impact it has on the national dialogue on this issue.