The federal government is trying to have it both ways. Either Title IX—a federal statutes prohibiting sex discrimination in schools—requires educational institutional to prevent sexual harassment on a subjective basis, or it doesn't.
Here's the problem: the Obama administration has issued guidance to schools asserting that they should accommodate the needs of transgender students, and that said accommodations are required by Title IX. Schools must allow kids to use the facilities that correspond with their gender identity—their stated gender preference—rather than their biological sex.
This is an obviously strained interpretation of Title IX. For reference, here's what the statute says: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
Gender and sex are obviously not the same thing, so the fact the federal government is construing sex to mean gender strikes me as a straightforwardly incorrect interpretation of the statute.
That's not all. The government's guidance on trans kids and bathrooms—which I would support, in some form, if the administration was not torturing the law to produce it—simply contradicts its guidance on sexual harassment.
The Education Department has informed colleges that Title IX requires them to protect their students from sex-based discrimination, violence, and sexual harassment. It has also opined that harassment need not be objectionable to a reasonable person to qualify, and it need not be severe and pervasive. Harassment, the guidance suggests, is based on the subjective feelings of the victim.
For example: sexually-suggestive jokes are routinely reported to college administrators as examples of sexual harassment.
Here's where the contradiction lies: If sexual jokes could be said to be a form of sexual harassment under Title IX, isn't it obviously the case that forcing someone to share a locker room with a person of the opposite biological sex is also a form of sexual harassment? Remember, under the government's guidance, harassment is in the eyes of harassed, even if it seems silly to an objective third-party.
Harvard University Law Professor Jeannie Suk highlighted this inconsistency in a recent New Yorker piece:
But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical. Brandeis University found a male student responsible for sexual misconduct for looking at his boyfriend's genitals while both were using a communal school shower. The disciplined student then sued the school for denying him basic fairness in its disciplinary process, and a federal court recently refused to dismiss the suit.
Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys' locker room, or even a separate and private stall, instead of the girls' facility, has a claim that the school is violating Title IX. A non-transgender girl who's told she must share a locker room with boys may also have a claim that the school is violating Title IX. But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and "emotional strain" should be disregarded. But this week, in a letter, dozens of members of Congress asked the Attorney General and the Secretary of Education to explain why they should be disregarded. The federal government is putting schools in a position where they may be sued whichever route they choose. (Catherine Lhamon, the assistant secretary for Civil Rights at the Department of Education, declined to comment on this issue.)
I covered the Brandeis case that Suk is referring to here. Like Suk, I'm concerned that the government is putting schools in the impossible position of having to accommodate the mutually exclusive needs of students.
But this is what happens when the executive branch ignores the legislative process and instead broadens the scope of an existing law without any input from the public or Congress.
As my colleague Scott Shackford reports, several states are now suing the feds for forcing them to follow a strained interpretation of Title IX. I have no doubt that much of this opposition to following the law stems from societal animosity to trans people, who fully deserve equal rights, equal treatment, and dignity. I'm generally in favor of letting trans kids use the locker room that makes them more comfortable, as long as schools retain the ability to prevent genuine disruptions and misuse of the policy. But the uncomfortable truth is that the states are right: the federal government's Title IX guidance is reckless, inconsistent, and legally flawed.