Trans

Does Title IX Prohibit Sexual Harassment in College, But Require It in Locker Rooms?

Contradictory guidance on trans bathrooms and campus sexual harassment.

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Shower
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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. 

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  1. This is an obviously strained interpretation of Title IX. For reference, here’s what the statute says:

    “A well regulated academia being necessary to the security of a federal handouts, the right of the people to keep and bear genitals shall not be infringed.”

    1. Yes, but what about circumcision?

    2. “bear”

      I checked the statute, and it’s *not* “bear”, ,.

      *dons sunglasses*

      …it’s, “BARE”, O Fisty of Knockingham.

      1. Dang.

        I was hoping for bear genitals.

        1. Polar or Grizzly?

          1. Male Grizzly and Female Polar. They make the cutest hybrids.

      2. You can’t rewrite Title IX.

        1. Of course not; I wrote what the statute *actually says*. It’s not my fault you can’t read; you mad your lysdexia is trumped by exhibitionism? *grins*

          ADA much, bigot?

  2. “”requires educational institutional to prevent sexual harassment””

    i presume “institutionals” are the crazy people they keep locked up?

  3. For reference, here’s what the statute says

    in your face sloopy!

  4. 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.

    Isn’t that precisely why and how such complaints will be dismissed, with recourse to an evidently malleable interpretation of the statutory language? If women have been able to avail themselves of the very subjective nature of the statute, routinely violating the rights of male students in the process, why isn’t it inevitable that transgendered students will find support in the same text at the expense of women?

    Sorry, ladies, you’ve had your time in the spotlight. Back to the bottom of the deck, you transphobic bigots.

    1. “Me today, you tomorrow” is an Iron Law for a reason: politics is an ever-changing game with no set rules, few winners, and lots of losers.

      1. I should say few *all-time* winners. All-time winners like the Clintons, who are exempted as a matter of course from paying a price for their chicanery. Unless you’re a Clinton or a hanger-on, eventually you’re going to succumb in one way or another to the administrative behemoth.

  5. Robby, when will you learn that as long as the federal government has good intentions none of the (un)intended consequences matter?

  6. “But we need anti-discrimination laws because people can’t change their immutable characteristics, and someone who changes their gender would be… uuummmm, wait a minute….”

    1. Seeing as the Civil Rights Act (1964) included religion, such laws haven’t been about “immutable characteristics” for over fifty years.

  7. I’m generally in favor of letting trans kids use the locker room that makes them more comfortable

    Maybe then instead of getting the State involved in reading their minds, we should let the 0.3% (or so) of Transkids in the population actually speak on their own behalf and say what they’d prefer at the schools they actually attend.

    1. While we’re at it, it wouldn’t hurt to give passing regard to what the other 99.7% think about the subject.

      1. homple- that’s just crazy talk. You know the 99.7% are unenlightened, racist, misogynist, etc., etc.

      2. it wouldn’t hurt to give passing regard to what the other 99.7% think about the subject

        The obvious retort is that the majority’s view is already the status-quo

        my point was simply that if certain groups have specific demands for accommodation, they should make them directly to the institutions that they patronize. Not have the fed-gov or any other state body presume to make demands for them sans any actual representative body proving clarity.

        The problem i see with this whole bullshit thing is that the SocJustice activists basically run wild CLAIMING to be speaking on behalf of others and demanding special authority.

        But – much like the “Redskins” issue, where 90% of actual *Native Americans* don’t give a flying fuck what the football team is called – actual Trans people have basically had their agency stripped from them, and their interests co-opted by others.

        Its such a small group of people that accommodating them shouldn’t be an issue of Top-Down, one-size-fits all law…. or if there is one, it should allow for institutions to respond where there there is a need, rather than simply to meet some arbitrary requirement.

    2. That happened.

      It’s where the legal reasoning of Obama’s executive order was tested and proved persuasive.

  8. more like Title FYTW…

    amirite?

    1. AW- the same could be said of most of the regulatory state.

      1. Also yes.

  9. 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.

    Why is their “comfort” more important the the people who object’s comfort? It is telling how both Soave and Shackelford just assume that the fashionable victim group dejour’s feelings automatically take precedence over anyone else. Why is that? Why are the transgendered the favored group but the person who doesn’t want to shower with them not? Who decided this and why does it not only have to be this way but also must be that way such that the losing group isn’t even owed an explanation?

    1. I didn’t want to shower with anybody in high school but I had to anyway. I made do.

      1. Neither do most kids that age. So why can’t they demand individual showers? I don’t see why their feelings are any less valid than a transgendered kid’s feelings. This whole thing is such raw identity politics. And a good number of libertarians are sadly buying into it because anything that is even remotely associated with GAYZ must be good or something.

        1. In my day – which wasn’t that long ago – anything other than going with the flow was roughly equivalent to taping a “kick me” sign on your back. It would not have even occurred to me to demand an individual shower.

          1. Me either.

            1. Private showers are the best solution.

              But one thing that does come into question, is how many of these students really believe that they are a member of the opposite sex? How many have had reassignment surgery?

              I mean you can believe what you want about yourself, but it doesn’t always make it so. I support their right to be who they want to be, but reality is still reality.

              1. Private showers are the best solution.

                Sure. As long as you can force somebody else to pay for them.

              2. What RC says. Where does Soave get off claiming he has the right to demand that taxpayers fund these things?

              3. A chance for a guy to shower with girls. All you have to do is identify as a girl.

                You couldn’t write a better frat boy movie fantasy.

          2. I was smart enough to always take gym late in the day, and just spray on the Axe afterwards. I could shower at home.

        2. Personally, I think they’re doing it simply to piss you off.

          I could be wrong, but that would be funny.

          1. They are doing it because they let their cultural preferences and prejudices take the place of thinking. They don’t see the complete irrationality of this. Instead they see one group they like, transgendered, and one group they don’t, anyone who objects. No more thinking required.

            1. Well, that’s certainly unusual behavior in this day and age.

              1. Yeah. Perhaps I am just naive and would hope libertarians would be better than that.

            2. I have a theory on why Obama is doing this. If you’ve read much about O’s background, you know that he is a somewhat demented weirdo. Read his poetry if you doubt that. On a deep psychological level, his weirdness influences him more than his blackness: he’s 100% weird and only 50% black. That’s why his memoir notes that:

              To avoid being mistaken for a sellout,I chose my friends carefully.The more politically active black students.The foreign students.The Chicanos.The Marxist Professors and the structural feminists and punk-rock performance poets.We smoked cigarettes and wore leather jackets.At night,in the dorms,we discussed neocolonialism,Franz Fanon,Eurocentrism,and patriarchy.When we ground out our cigarettes in the hallway carpet or set our stereos so loud that the walls began to shake,we were resisting bourgeois society’s stifling constraints.We weren’t indifferent or careless or insecure.We were alienated.

              I’ve no doubt that both were the source of some difficulties for him growing up, and he’s still just getting back at normal people, especially white people who are all racists.

              1. Just to pull a SWAG out of my ass, Obama was raised by his leftist but seemingly very normal white grandparents. Here is a kid who is half black and whose actual parents dump him on his grandparents. Being dumped by your natural parents understandably does bad things to a person. I can totally imagine Obama channeling his anger and disappointment over the way his parents treated him towards his grandparents. Obama at that point was a charity case. And charity nearly always breeds resentment in the person who benefits towards the person who gives it.

                And no matter how horrible a person’s parents are, there is something inside of most people that makes it nearly impossible for them to really hate their parents. So what often happens is that hatred gets channeled somewhere else, like inward in the form of depression or outward towards someone like the person who took you in.

                So, I think your theory about him hating normals is likely true.

        3. Sadly, I have to agree with John. Rather than taking the genuine libertarian position that government should have no involvement in education, many self-described libertarians take the position that government should provide every novel victim group equal access to educational services and facilities, even if that obtains extremely unpopular and palpably absurd results. Rather than taking the genuine libertarian position that government should not be meddling in the relationships formed between and among individuals, many self-described libertarians advocate state-sanctioned licensing of gay marriage. Individuals and voluntary non-state institutions ought to sort these things out for themselves without any coercive input from the state.

          Then libertarians wonder why outsiders think they are nuts and that libertarian is a synonym for libertine.

          1. Exactly that CATO. I understand that in an ideal world we would not have government marriage or public schools or public accommodation laws. We do not live in an ideal world. And those things do exist and they are not going away anytime soon. So the question is how should a Libertarian deal with those things.

            The approach Soave and many at reason took on gay marriage and are taking here is to support whichever group they like and waive off the foreseeable and nasty consequences to people they don’t like by saying “we don’t support (public accommodation laws, government marriage, government schools, ect), so if the existence of those things combined with our position rob you of your freedom that is not our fault.

            That to me seems like a total cop out and just a rationalization to support whatever group Libertarians feel the most cultural affinity towards. In the case of transgendered, we shouldn’t have public schools bue we do and those schools are a form of association. So why can’t we let the people involved decide for themselves on a case by case basis? If the transgendered don’t like the result, they can home school or go to private school just like kids who prefer a religious environment do.

      2. Which is fine and certainly something I’d have agreed with. But, I think John’s point still stands. Equality under the law should mean either everyone’s feelings matter or no one’s.

      3. Am I missing something here?

        You DIDN’T want to shower with a bunch of dudes?

        1. Touch?. OTOH, avoiding any potential incidents such as getting my ass kicked was probably more important to me at the time.

      4. Interesting, I never had any problem showering with classmates in high school. I guess I didn’t mind being seen undressed.

        1. When I played team sports, I didn’t have an issue with it at all. But with the idiots in regular gym class? No thanks.

        2. You know what that means, right? Right?

          1. Exhibitionism is natural for some?

          2. He just wants to brag about his DOOMCOCK, JR.

    2. What makes you think that forcing Laverne Cox into the men’s locker room and Buck Angel into the girl’s locker room is going to improve anyone’s comfort?

      And who isn’t getting an explanation? Just because you don’t like an explanation doesn’t mean you aren’t getting it.

      1. I know it will improve people’s comfort. It will improve the comfort of the people in the other locker room that object to it. If it didn’t, this wouldn’t be an issue.

        Yes, there is an explanation and it amounts to fuck you that is why. And no, I don’t like it. Go put your boot on someone else’ face or maybe your own for once.

        1. “It will improve the comfort of the people in the other locker room that object to it. If it didn’t, this wouldn’t be an issue.”
          Because people objecting to something *always* think through the consequences of their objections?

          That’s a bold claim.

  10. I’d like to see a link or cite to the assertion that harassment under Title IX is based solely on the subjective feelings of the person reporting the harassment. That doesn’t sound right to me, and I can’t find any support for it online.

    1. It is not right at all. The actions have to be of such a duration and nature that they create a hostile environment for the affected person. It is a pretty big stretch to claim having to use the bathroom for your biological sex makes a school or a work a hostile environment.

    2. When complaints are prosecuted by star chambers peopled by agents sympathetic to the alleged victim, using a preponderance of evidence standard, it’s difficult to pretend the process is not in fact hedged solely on the subjective feelings of the person reporting harassment.

    3. I believe you will find that in the Dep’t of Education’s “Dear Colleague” letters. The DOE is intentionally pushing the definition of harassment beyond what it currently is in the employment context. Sexual harassment in employment required severe or pervasive conduct that a similarly-situated reasonable person would conclude makes the workplace hostile and abusive. The DOE is pushing a theory of “harassment” based on conduct that is less than severe or pervasive (hence, “microaggressions”), and based on a subjective rather than objective standard.

      “Dear Colleague” letters do not have the force of law, but they are thinly veiled threats to the colleges that they will lose federal funding if they do not toe the line. The “chilling effect” is just as effective as the force of law. And because they have no formal force of law, they are not subject to judicial review unless a college chooses to violate them, lose its funding, and then challenge the funding loss.

  11. Harvard University Law Professor Jeannie Suk

    Clearly, this is *NOT* the same person who started the Suk School of Medicine. Biology and Life Sciences are required subjects there, she has FAIL’ed both.

    1. Well that Suks.

    2. You beat me to the “Is she a PhD? A Suk Doctor then?” joke, dammit!

  12. I’m generally in favor of letting trans kids use the locker room that makes them more comfortable,

    I think the point is that not everyone is “comfortable” with that. So… who wins?

    1. Whoever is sitting at the top of the progressive stack this week. They don’t even pretend to apply the rules objectively, and I suspect any attempt to appeal to objectivity will be met with stony silence. In a few years when transgenderism loses its cache, women might get another bite at the apple.

  13. “That’s not all. The government’s guidance on trans kids and bathrooms?which I would support, in some form”

    How about car drivers identifying as walkers to gain access to sidewalks ?

    ALL public property discriminates on some basis. As long as there is no up-front discrimination, rules on use of public property while they may be discriminatory ARE NOT an example of inequality before the law.

  14. I’m 30 and have never had to shower with a large group of people. Where are all of these places where people still get naked and shower with one another?

    1. You didn’t shower after gym class in high school? We normally didn’t except after swim class when it was required.

      1. No one showered after gym in my high school, I suppose we all just smelled.

      2. I never once showered after gym class. And we didn’t have a pool at school. Which is weird, because I went to middle and high school in South Florida.

      3. Always showered after gym – was never presented as an option at either High School I attended.

      4. Showers were available but optional at the high school I attended. Hardly anyone used them.

      5. We had to shower after gym class in middle school. A truly terrible experience. After that, I just slathered myself in deodorant. Goddam I hated middle and high school.

    2. The Marine Corps

    3. High school gym class, especially after swimming units, high school sports teams (sometimes), half the dorms in my college had community bathrooms, private gyms, public swimming pools, private swim clubs.

      To paraphrase Norm MacDonald, it’s hard to get through life without seeing a few dozen scrotums.

  15. 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.

    Isn’t it blatantly obvious that the vast, vast, vast majority of people who are more comfortable in a single-sex bathroom should be given vastly more weight here.

    Bathrooms are discriminated by sex for exactly one reason: privacy. They are not discriminated by sex for the reason of validating anyone’s gender, or of oppressing anyone, or even of avoiding harassment. Privacy.

    1. Seriously, executive edicts should carry the same level of seriousness as legislative bans, e.g. none. Nobody who goes into a bathroom is interested in what anyone else is doing in the, at least not until progressives rallied to this absurd cause and forced a national panic. Now trans people who previously passed have to worry about being singled out, and the nation is obsessed with improbable scenarios like molesters or rapists dressing in drag. What should have been an issue left to business owners is instead given a national platform that virtually guarantees scolds on both sides will make life very uncomfortable for some people.

      1. it’s not just molesters and rapists.

        What if I go to the gym shower at Bally’s and just hang out for a while enjoying the view? Not touching myself or others or even talking to anyone. Just enjoying the view…

        Not too long before the “creepy dude in the shower” is getting tossed out or the women (the ones without penises) stop going to the gym.

        1. A lot of men do not like being naked around other men. A significant number of men specifically seek out women doctors for this reason. No one seems to be able to explain or even try to explain why a man who feels uncomfortable showering with other men but not because he thinks he is a woman doesn’t have just as much of a claim to accommodation as a man who is transgendered. it all goes back to the same question, what is so special about being transgendered? There is no explanation for that and there can’t be one. The only explanation is that they are special because a group of activists have been able to bully people into deciding they are. That is it.

    2. Which do you think is going to cause more discomfort in the women’s room: Laverne Cox or Buck Angel? You get one or the other.

  16. With a name like Jeannie Suk, I’m sure she’s been the target of harassment. She definitely has standing here.

  17. 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.

    Maybe one of the lawyers here could give me some guidance. But, if Title IX is now to be interpreted to say that schools can’t discriminate on the basis of “gender” rather than sex, then isn’t a ruling that transexuals can use women’s locker rooms, but not good-old-fashioned heterosexual males can’t itself a Title IX violation? It strikes me that they can’t go this route without having to let guys use women’s locker rooms, even if their expressed goal is to “stare at their boobies and hoo-has”.

    1. That is an interesting question Bill. The argument seems to be that transgendered have a right to use whatever bathroom they want because your sex doesn’t mean your anatomy but is some mental state of being, we call gender, Therefore, insisting they are the other “gender” when they claim they are not is discrimination. The biological males who also think they are males cannot use the women’s bathroom because they are biological males. Basically the argument says you can’t discriminate based on gender but now can discriminate based on sex.

      So a statute that was passed to make it illegal to discriminate based on sex is now being read to make it legal to discriminate based on sex in some cases.

      Insane is almost too weak of a word for this nonsense.

    2. See my comment below, and feel free to review my statement in previous threads.

      The administration has declared bathroom unisex, full stop. There’s one way, and one way only to make sure only transgendered people use the facility of their choice, and it’s going to involve an ID card, arm-band or symbol on your lapel.

      1. Solution in search of a problem. States and cities have been explicitly allowing trans* folk to use the bathroom of their choice for years, and the only “problems” that have arisen have been recent, and politically motivated.

        The feared straight perverts using trans-friendly laws to perv out on women have not materialized.

  18. 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

    This whole kerfuffle is beginning to deserve being filed under “some ideas so dumb, only an intellectual could have thought of it”.

    Again, the administration has not declared ANYTHING for “Transgender” people. The administration has simply declared all bathroom facilities as Unisex, and people are going to start figuring this out real quick, which is going to be one of the most delicious processes when the clarification phase begins.

    1. But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males.

      What kind of sheltered SJW halfwit do you have to be to thin this is a “growing” sense? The notion that females don’t feel safe sharing these spaces with men has been the default for centuries. This isn’t something that just popped up, after all. Its the reason we have sex-specific spaces in the first place.

      1. he notion that females don’t feel safe sharing these spaces with men has been the default for centuries.

        As I said, this shit is getting so dumb, only an intellectual has to parse this crap out.

        1. only an intellectual has to parse this crap out

          Ahem, physicians get a seat at this table too, a la both myself (General Surgeon/Bariatrics) and my wife (OBGYN/Urology). Both of us have germane training and medical opinion relevant to this subject, as it’s not exclusive to the USA, nor UKR.

          We have some definite opinions how the subject at hand is viewed both in UKR and the USA, both socially and medically speaking.

          And its not “dumb”, Paul; this is a fundamental restructuring of both Mendelian genetic genotyping, phenotyping, and endemic taxonomy.

  19. You know who else tried to have it both ways…

        1. You ciscandy shitlords can fuck right off with your candy binaries. Candy is an open-ended term with as many definitions as there are sweets, and forcing any one list of ingredients on all candy is transfatphobic.

          1. Mix some milk into chocolate and get back to me.

          2. TWIIIIIIX!

  20. Back when I was in college (in the mid-1980’s), our dorm voted to make the bathrooms co-ed. We had one big bathroom per floor, and naturally nobody wanted to have to go to another floor just to go to the bathroom. To the best of my knowledge, there were never any issues with the co-ed bathrooms. They had no urinals, and all the toilets were in enclosed stalls. So were the showers. I never saw anyone else’s genitals in those bathrooms, male or female.

    I predict that in the coming decades, co-ed bathrooms will become commonplace. Once they’re the norm, this whole transgender bathroom thing will become the complete non-issue that it should have been all along.

    In the meantime, this is another silly issue that simply shouldn’t be handled at the federal level.

    1. Unfortunately, I haven’t been in every facility everywhere, so the structure of certain facilities will be paramount in the public deciding how comfortable it is.

      No urinals with closed stalls for everything, including the shower? Probably fine. A large sporting facility with open showers and changing areas– like at many a public pool I’ve been to? Now you’re going to get some uncomfortable people. I believe the “comfort level” will literally be on a case-by-case basis, and an excellent breeding ground for new regulations.

      Those facilities that have provided no stalls or separation because they were built with single-sex use in mind may become the targets of lawsuits and new regulations. I can foresee an entirely new paradigm of building regs surrounding bathrooms designed to somehow straddle the line between “unisex” and privacy, attempting to satisfy both.

    2. My dorm was co-ed at Berkeley. Late ’90s.

      It was there that I learned that tiny asian chicks take the smelliest dumps.

      1. My campus had only suite bathrooms, so 4 people (of the same sex) max. Funny enough one of my suitemates started transitioning a few years later…

  21. So no harassment unless you say some magical nonsense PC words – trans, cis, blah, blah. Once you have been identified as a proper thinking person, you are authorized to get your perv on.

  22. Transgendered is so 2015. Now it is all about the Dog boys.

    https://pjmedia.com/instapundit/234689-2/

    I hope these guys go full SJW and demand equal treatment. If people liek Soave and Shackelford want to embrace this madness, they can live with the consequences. If I can be a woman trapped in a man’s body, why can’t I be a dog trapped in one?

    1. Don’t forget the Furries.

    2. ” If I can be a woman trapped in a man’s body, why can’t I be a dog trapped in one?”

      I suppose providing litter boxes for people who identify as cats has already been discussed.

      1. What about people who identify as shit-flinging monkeys?

  23. 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.

    Robby, would those policies be to identify ‘legitimate’ trans people with some sort of vetting process, perhaps placing a pink star of David on their lapel so they can be easily spotted before entering the facility of their choice?

    1. When cisgender people start claiming to be trans in any sort of numbers, then looking for a solution will be reasonable. Until then, you’re asking for solutions to problems that haven’t happened.

      And it’s not like these things are new. States and cities have been pushing transgender-rights for years. And the straight pervs claiming to be trans to get their rocks off? Have not materialized.

      1. States and cities have been pushing transgender-rights for years. And the straight pervs claiming to be trans to get their rocks off? Have not materialized.

        Mainly because those states and cities have been dealing with this issue in a broad, socially-understood way which probably takes into account the local social fabric and with generally understood acceptance of local populations.

        When the federal government passes down a one-size-fits all rule woven into an interpretation of Title IX that states “thou shalt allow the transgendered into your bathroom/shower facilities” with the implied threat of lawsuits or regulatory sanctions for those that don’t comply, exact definitions of the whos and whats are going to be forthcoming. I guarantee it.

  24. “I’m concerned that the government is putting schools in the impossible position of having to accommodate the mutually exclusive needs desires of students.”

    FTFY.

  25. “Gender and sex are obviously not the same thing” Sez who? They’ve been the same thing since Chaucer was learning to talk. What comes of splitting them other than the double think noted in the article.

    Gender roles and gender expression might be different things but they are compound nouns that shouldn’t be short-handed — if one wants to communicate clearly

    An organization calling itself “Reason” ought to stand up for clarity of conversation and not dilute same because you want to sit with the cool kids.

    1. Drink!

  26. Once we get all the trans shit sorted, what’s next on the agenda?

    Do we ever get to cutting spending and taxes?

    How ’bout entitlements and public employee unions?

    Or do we have to wait for another recession before anybody wants to hear about that again?

    I bet there’s some kind of indicator, where you know the economy is somewhere near a top when the front page of your local newspaper looks an episode guide to the Jerry Springer Show.

    1. Hey Ken – get your priorities right.

      We’ll talk about the economy right after every SJW issue they can imagine has been fully addressed to everyone’s satisfaction.

      1. And the list never ends.

        Are we gonna make America a safe space for dog fuckers next, or what?

        1. Are we gonna make America a safe space for dog fuckers next, or what?

          Paedophiles, Ken. I honestly thought it would be the polygamists making their move.

          1. Within the lifetime of most millennials, there will be a federally mandated Bring Your Catamite to Work Day.

      2. We’ll talk about the economy right after every SJW issue they can imagine has been fully addressed to everyone’s satisfaction.

        IOW, never.

    2. Once we get all the trans shit sorted, what’s next on the agenda?

      The trans shit WON’T get sorted until we literally issue pieces of flair to be worn by government-vetted transgender people. Pieces of flair that the transgender community will actually demand.

      1. Like sewing stars on their shirts?

      2. But won’t that just be othering the Twin Spirits?

    3. You ain’t seen nuthin’ yet. There’s a huge backlog of pathologies the government has yet to force us to recognize and accommodate.

    4. The whole thing is driven by our society’s obsession with what I call virtue supremacy. People need a reason to feel superior to others. In the past, that reason was generally whatever race they were. No matter who you were, you could wake up and feel superior to someone because they were a different race. Even black people could feel superior to darker skinned blacks. That is mostly and thankfully gone today. But people still have the need to feel superior. So what they do now is feel superior by being more virtuous. That sounds like it would be good but it is not. The problem with relying on your superior virtue for your sense of superiority is that as this or that cause wins and society adopts your view, you have to find another view or you have no reason to feel superior. Fifty years ago, you felt superior by believing in equal rights for all races. 40 years ago you felt superior by believing in affirmative action. Thirty years ago you felt superior by believing in gay rights. Ten years ago it was gay marriage. Now it is transgendered rights. When this ends, it will be something else and likely something even less significant and even more bizzare. I don’t know where this all ends or stops.

      1. As long as people keep giving in to it, it never stops. Never.

      2. A crucial problem is that we slipped from “Treat people equally, regardless” to “Give victim group members special treatment.” It’s all downhill from there.

        1. They had to once people were treated equally under the law. Once that happened, saying “everyone should be treated equally” no longer signified any virtue supremacy. so they had to move on to “some groups deserve special treatment”.

    5. Once we get all the trans shit sorted, what’s next on the agenda?

      Otherkin rights.

      1. I am telling you, its dog men. Why shouldn’t women have to accommodate my need to hump their leg when I am on the subway next to them?

        1. That’s some funny shit.

          Like this?

          1. Its who I am Cynical Asshole. You must accommodate me!!

  27. “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. ”

    Fortunately, I think the natural right to pee sitting down remains safe from those reactionaries, owing to the universal need to perform #2. Toilets are the great equalizer of our age.

    1. What about the natural right to pee standing up? That water is cold.

      1. Deep too

        1. And the bottom’s muddy.

      2. Again toilets save the day. Plus you get a private stall to protect your dignity. That’s what I do when they don’t provide the little “dignity wall” at the urinals.

    2. 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 don’t really think that at all. Most of the opposition isn’t directed at “icky trans people”, its directed at “creepy straight people who will abuse the new rule.”

  28. This nonsense did manage to produce one funny Facebook meme. There is a picture of an old school community pool full of kids going around with the caption “The Original Transgendered Bathroom”. That is pretty funny.

  29. 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.

    Drafting error… not what Congress really intended…

    Hey, if it worked to justify the Executive branch giving Obamacare subsidies to federal exchange participants despite the fact that the plain language of the PPACA clearly stated the subsidies were only available to participants on exchanges “established by the States” under section… whatever section it was, I don’t remember… that specifically dealt with State created exchanges while a different section dealt with the Federal exchange, then why can’t they just simply re-interpret Title IX to mean whatever the fuck they want it to? In fact, why even bother with having that pesky Congress anyway? I mean, all they do is just obstruct the President from doing Good Things, right? /sarc, obviously

  30. Robby says:

    government’s guidance on trans kids and bathrooms?which I would support, in some form

    For bathrooms, where there is still some privacy, this might make a bit of sense. But a locker room? I don’t want this at my kids’ high school: a person who looks like a girl strips down in the locker room only to display a full-sized package for all the girls to enjoy. This is just beyond common sense.

    1. While sex-reassignment surgery isn’t common for minors, puberty-blockers and other hormonal treatments are.

      So “full-sized” is not likely.

      Further, you do know that part of being trans is being uncomfortble with your secondary sex characteristics? That transgirl isn’t going to be flaunting her junk, she’s gonna be wrapping up with a towel and shimmying out of her shorts, or just heading over to a stall and change in there.

      1. A parent who would give puberty-blockers to their 8 year old is batshit insane.

  31. Robby, what the hell is the “equal right” to compel association? What about negative liberty? What about a neutral principle? Read Wechsler, Toward Neutral Principles.

    “discrimination under any education program or activity receiving Federal financial assistance”

    Note how showering is educational. As is going to a college party. Commerce Clause.

    1. Logic dictates that if “discrimination” is absolutely impermissible then facilities segregated by gender are verboten, as well as women’s sports.

      It is too bad Reason does not apply the reasoning that the denotation of “accident” can cover reckless behavior in an article this week, realize that “discrimination” is not necessarily a wrong.

  32. Let me see if I understand the DOJ’s positions on this:

    Title IX can be violated if I (gender identifying as a woman), am forced to share a bathroom/locker room with a man (me, a biological male) and this makes me feel uncomfortable or harassed.

    But according to Robbie it’s trans animosity that is driving the pushback, not the internal inconsistency of the positions and potential for unwinnable lawsuits.

  33. “[…] 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?”
    I’m gay. Do I “sexually harass” every other guy in the locker room whenever I go to the gym?

    If your answer is “no”, then this argument doesn’t work. If the answer is “yes”, then you have a much bigger problem then trans people.

    1. You’ve got to be arguing in bad faith.

      There have always been gay people in locker rooms. It doesn’t matter at all if these people feel arousal from the people around them. The only things that matter are things that affect other people. Externalities.

      If a guy dressed as a girl strips down in a high school locker room, don’t you think the other girls in the room will feel uncomfortable? What about them? Do they have no expectation of privacy? The same goes for a naked chick in the boys locker room. It’s nonsense.

      1. It is total nonsense. And your point about it affecting other people is why the claims that “they have been doing for years, why care now” are idiotic. If someone slips in and out and no one notices, then they are not affected. This isn’t about that. This is about things like the examples you give. it is not about equal rights. it is about shoving something in everyone’s face and using the government to force people to accept it,.

        And Libertarians support this shit or dismiss it like it doesn’t matter. This is about the government forcing people to accept an alternative view of reality. And people like Soave and Shackelford think it is a right and good thing. It is just infuriating.

        1. As much as I love Soave on the campus idiocy happening everywhere, he is just way off on these LGBTXXXXX issues.

      2. I’m confused. You seem to think that gay people always existing means that concerns about discomfort there are moot, but you ignore that trans* folk have always existed too. Just because you don’t notice someone doesn’t mean they aren’t there.

        That said, I’m entirely serious. Look up some of the old DADT arguments (you know, from like six years ago), and you’ll find the same bathroom panic bullshit over gay people in the military.

        And no, no one has an expectation of privacy in the locker room. You’re in a room ten to thirty other people in various states of undress, including coaches and faculty (who may or may not be the same gender) wandering in an out. If that’s your idea of “privacy”, then we’re going to need to put this conversation on pause until we can agree on some terminology.

        1. Everybody’s uncomfortable! So, who’s comfort should be protected? A trans* (Am I supposed to what “trans*” is code for?) person is living a life that is uncomfortable. There is no way to make them comfortable. It’s like saying that since a few people have dendrophobia, we should cut down all the trees.

          I feel very confident in saying that there is no public school in the United States that allows adult males in the girls locker room or adult females in the boys locker room.

          There is an expectation of privacy from being seen naked in front of the opposite sex. It is a social norm.

          1. Yep. Our female gym teacher had to stand at the door and yell at us if we were taking too long getting dressed for gym class.

  34. WTF is with the focus on comfort? There’s no way to make a comfort-based decision for any party without a large dose of FYTW.

    On the other hand, NAP analysis seems straightforward: nobody should be forced to use any particular shower. If a person does not like to share company with other present occupants of the shower, he/she/it is free to wait, use another shower, or not shower (and thereby voluntarily forgo whatever activities might entail showering as a pre- or post-requisite).

    1. Which is to say, everyone whining about the shower situation needs to fuck off and go home.

    2. Uh, NAP analysis is straightforward: the owner of the shower gets to declare who can use the shower and under what circumstances.

      The longstanding convention that most owners of showers follow is being annulled by city ordinance, overridden by state legislation, and then usurped by executive fiat based on misinterpretation of an NAP-violating federal law.

  35. “Schools must allow kids to use the facilities that correspond with their gender identity?their stated gender preference?rather than their biological sex. ”

    Uh huh. Fruitloop from bizarroland demands that the common etiquette practiced for centuries by a civil society be abandoned in favor of…establishing fruitlooptopia?

    1. the common etiquette practiced for centuries

      Yes, that is it! And it’s much more eloquent than “social norm”.

  36. I agree with the basic argument that there’s a conflict here, because of the problem of divergence from applicable precedent requiring harassment to be objective/severe and pervasive to be actionable. I even agree with the notion that applying Title IX to transgender discrimination is questionable.

    But in this context, exactly how is “sex” obviously different from “gender?”

    It seems to me that in the legislative intent, it was precisely the same. At that time, they wouldn’t have contemplated issues of gender identity, vs. biological/physical gender…but it seems pretty clear that the meaning of “sex” here is precisely “gender.”

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