by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Ed Whelan writes at National Review Online that the Obama administration’s pursuit of transgender activism has produced a “legal absurdity.”
In 1972, Congress enacted the federal law known as Title IX. Title IX provides generally that no school that receives federal funding — a category that includes public grade schools and high schools as well as nearly all colleges, public or private — may “discriminat[e]” “on the basis of sex.” Everyone understood from the beginning, and the Obama administration still agrees, that Title IX allows schools to have single-sex restrooms, locker rooms, and showers. A regulation dating from 1975 says exactly that — a school “may provide separate toilet, locker room, and shower facilities on the basis of sex” — and goes on to specify only that “such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex” (emphasis added).
Pushing the transgender agenda through the entire alphabet of the federal bureaucracy has been a high priority for the administration in President Obama’s second term. So it was that in January 2015 an obscure functionary named James A. Ferg-Cadima, in his temporary capacity as acting deputy assistant secretary at the Department of Education, signed his name to a letter and sent that letter to G.G. (and to various transgender activists). In his letter, Ferg-Cadima made two cursory legal claims on behalf of the department. First, he declared that Title IX’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. Second, he asserted that schools that provide “sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes” must “treat transgender students consistent with their gender identity.”
Ponder for a moment some examples of what Ferg-Cadima’s second claim means for schools that receive federal funding. A young man who says his gender identity is female must be offered a college dormitory room with roommates who are women (irrespective of the wishes of those roommates). An athlete who is biologically male in all respects must be allowed to compete for a position on a women’s sports team if he identifies himself as female. A first-grade girl who thinks she’s a boy can use the boys’ bathroom. And, yes, high-school boys who say they’re transgender girls may use the girls’ locker rooms and showers on the same terms, and at the same time, as the girls do — and vice versa, of course, for girls who say they’re transgender boys.
Not surprisingly, this insanity has no plausible basis in Title IX. Let’s assume, for the sake of argument, that Ferg-Cadima is right in his first claim: that Title IX actually forbids discrimination on the basis of gender identity. On any coherent account of what discrimination is, that assumption thoroughly defeats, rather than supports, Ferg-Cadima’s claim that “transgender students” must be treated “consistent with their gender identity.”