When the Trump administration rescinded the transgender bathroom guidance in February, the mainstream media portrayed it as a frontal assault on civil rights. But most Americans didn’t agree. They saw Trump’s policy for what it was—an effort to rein in one of the Obama administration’s more serious bureaucratic overreaches.
Nevertheless, the “sky is falling” narrative has continued. Recently, Trump has been accused of slashing the budgets of the two agencies originally responsible for the transgender guidance. Given how frequently those agencies overstepped their authority in recent years, cuts are entirely appropriate. But Trump’s proposal is mild—maybe even too mild. It increases slightly the budget for the Justice Department’s Civil Rights Division to $148.1 million. While it reduces by a modest 1.6% the current $108.5 million allotment for the Education Department’s Office for Civil Rights, that comes only after extravagant increases in the Obama administration’s final years.
The ability to discuss sensitive issues without demonizing one’s ideological opponents is vital in a democracy. But it seems that Trump Derangement Syndrome is making civil debate about the transgender issue difficult. Two weeks ago, Trump’s OCR quietly closed its investigation into an Ohio school that had declined to permit an anatomically male transgender student to use the girls’ facilities. This was hardly newsworthy. The investigation had already established the facts. OCR is simply awaiting the resolution of litigation filed last year on the complaining student’s behalf. Nevertheless, the Washington Post took the opportunity to quote a source who insisted the Trump administration was declaring “open season on transgender students.” The Post article accused Trump’s OCR of pushing “to scale back civil rights” and complained that “no reason or legal justification” had been provided for its failure to hold the school in violation of Title IX.
Allow me to supply that reason: The law is not infinitely malleable. Title IX cannot be used, nearly half a century after its passage, to require whatever political activists happen to view as desirable that day. If Americans want their local schools to change their bathroom practices, they must either persuade those schools or pass a new law.
The one and only thing that Title IX prohibits is sex discrimination. If it isn’t sex discrimination, Title IX doesn’t prohibit it. But even that prohibition is subject to exceptions, including a purely permissive regulation that clarifies that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex.”
Is it sex discrimination for a school to decline to allow an anatomically male student who psychologically identifies as female to use the girls’ facilities? Well … in a sense, yes. If that student were anatomically female, using the girls’ facilities would be permitted. But separation by sex for toilets, locker rooms and showers is precisely what the validly-promulgated regulation allows. That should end the matter.
Some anatomical boys implausibly insist they really are girls (and vice versa). But even if they are right that sex is a state of mind, rather than body, it doesn’t help their argument. If they are girls, they are being excluded from the girls’ facilities based on something other than their sex. Title IX therefore doesn’t apply.
The argument for the now-rescinded transgender bathroom guidance was based on a 1989 Supreme Court case—Price Waterhouse v. Hopkins. That case concerned a woman who allegedly had not been promoted because she was perceived as too aggressive. The Court reasoned that if a male employee with the same personality would have been promoted then she has a Title VII sex discrimination claim.
That much makes some logical sense. But it doesn’t apply to bathrooms: Suppose a school has an anatomically male student who identifies as female. Would a female student with the same identification have been permitted to use the girl’s shower? Yes, certainly. But Title IX regulations specifically authorize schools to “provide separate toilet, locker room and shower facilities on the basis of sex.”
Note that applying Price Waterhouse’s logic to bathrooms would require unisex facilities. Even for a run-of-the-mill, male-identifying, anatomical male, it is true that his female counterpart would have been permitted to use the girls’ shower.
This is not to say that the Trump administration won’t apply Price Waterhouse outside the bathroom context. Suppose, for example, a school grades an anatomically male student down in debate class because he comes across as too feminine, while anatomical females are rewarded for femininity. By analogy to Price Waterhouse, that would likely be regarded as a Title IX violation.
Of course, Price Waterhouse may have its limits. For example, Courts of Appeal have been unwilling to apply it to prohibit reasonable grooming rules that make a distinction between the sexes, so long as those rules aren’t more onerous for one sex than for the other. Where are those limits? That is yet to be determined.
Right now the issue is bathrooms, and the Trump administration has rightly interpreted Title IX to give schools discretion. If a school wants to separate its students on the basis of gender identity or even astrological sign, it is legally free to do so. But it can also stick with the traditional separation by sex.
If we want what’s best for students, straight-jacketing schools is rarely a good idea. In some cases, having a transgender student use the facilities assigned to his anatomical sex works fine. In others, putting him with the sex he identifies with may work better. And in still others, assigning him a private facility may be the best solution. Every case is different.
The Trump policy allows for flexibility, without denigrating anyone on account of sex or gender identity. Moreover, it is the only honest and straightforward interpretation of the law.
Heriot is a Professor of Law, University of San Diego and member of the U.S. Commission on Civil Rights.