How can 'on the basis of sex' be ambiguous?

|The Volokh Conspiracy |

In my prior posts (here and here) on the controversy and legal conflict over how to accommodate transgender individuals, I have suggested that there is sufficient ambiguity in Title IX to allow the Department of Education to adopt the policy embodied in its transgender bathroom guidance as official policy through a rulemaking. So, if DOE actually bothered to go through notice-and-comment rulemaking—instead of simply issuing "Dear Colleague" letters and other guidance documents—it might (deserve to) prevail in cases like Texas v. U.S.

Over at Simple Justice, Scott Greenfield takes issue with my claim. The statute prohibits discrimination "on the basis of sex" and, Greenfield argues, there is no question what "sex" meant when Title IX was enacted. Discrimination "on the basis of sex" was understood as discrimination based upon an individual's biological sex, and "sex" was understood to denote a binary, biological classification.

I take Greenfield's point and readily concede that if one looks at the legislative history, one will find that the authors of Title IX were specifically concerned with discrimination against women in the educational context. But the language they wrote prohibits discrimination "on the basis of sex," and that language is (in certain applications) more ambiguous than it might seem at first.

How can "sex" be ambiguous? For starters, the word "sex" is ambiguous insofar as it does not always resolve whether someone is a man or a woman. Reference to biological sex or genitalia may do the trick in the vast majority of cases, but that's not enough. As the U.S. Court of Appeals for the Fourth Circuit noted in G.G. v. Gloucester County School Board, there are individuals who are not so readily classifiable (intersex individuals, those born with X-X-Y chromosomes, etc.). So there is some latent ambiguity as to how this seemingly clear word applies in such cases, and that's the sort of ambiguity an agency may resolve under Chevron.

To return to the subject at hand—DOE's transgender policies—it is not self-evident how the word "sex" should apply to an individual who is transitioning. That is, as Title IX lacks a definition for the relevant terms, it is not unambiguous as to the point at which a transitioning individual should be treated as one sex as opposed to another, and insofar as transitioning can be a long, drawn-out process with many steps, there is an ambiguity to be resolved. Indeed, this is the sort of ambiguity the Chevron doctrine was birthed to address, only there the question was the meaning and application of the word "source" instead of "sex."

Greenfield (and others) may wish to argue that an individual who is transitioning should be treated in accordance with their physical genitalia, so that a switch does not occur until one undergoes sex reassignment surgery (which typically occurs at or near the end of a transition). That's one possible answer. Another possibility is that once an individual has been diagnosed with gender dysphoria and begins the gender reassignment process, that individual should be classed as the sex to which they are transitioning. My point here is not to take sides in this dispute, only to note that it is not resolved by the text of Title IX—and if this dispute is not resolved by the text of Title IX, then there is an ambiguity for the agency to resolve under Chevron.

For this post, I simply highlight one way in which the word "sex" may be ambiguous, at least as applied to specific circumstances. When one also considers that discrimination "on the basis of sex" may also entail discrimination on perceptions and presentations of an individual's sex, further ambiguities may emerge. Again, my point here is not to resolve all of the relevant issues, but merely to make the simple point that arguing " 'sex' means 'sex' " is not sufficient to end the matter.

Two additional points. First, to say that the statute is ambiguous is not to say that anything goes. It is simply to say that there is a range of permissible meanings within which an agency has room to act. So, for instance, while I believe that it would be permissible for DOE to say the "sex" of a transitioning individual should be that to which the individual is transitioning, and that a school's legal obligations to act accordingly begin at a particular point, that does not necessarily mean that, for instance, Title IX can be read to require accommodating any and all assertions of gender identity in any and all contexts.

Second, lurking in the background of these disputes are other considerations that may constrain what DOE may do in the context of Title IX implementation. For instance, Title IX imposes conditions on recipients of federal funds, including state entities. Under a long line of cases (including NFIB v. Sebelius), states must have clear notice of any conditions placed on the receipt of such funds. Therefore, there may be other limits on the extent to which DOE may alter long-standing interpretations of conditions placed on such funding. Time permitting, I'll do a separate post on this issue.