The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, the Supreme Court decided to hear Gloucester County School Board v. GG, the case of a biologically female high school student who identifies as a transgender boy, and seeks access to the boy's bathroom at the school. GG argues that the school's policy qualifies as sex discrimination and therefore violates Title IX, the 1972 federal law mandating that "[n]o 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." The exclusion of transgender students from the bathrooms of their choice is indeed sex discrimination. The problem, however, is that exactly the same is true of all sex segregation in bathroom facilities. That complication is a serious problem for GG's case.
I. Why Transgender Discrimination in Bathroom Assignments is Sex Discrimination.
In an insightful recent blog post, Cornell law professor Michael Dorf defends GG's position:
At first blush, the argument for G.G. that there is a prima facie violation of Title IX looks like a slam dunk. After all, Title IX forbids sex discrimination and the school tells him he can't use a particular restroom because of (what it deems to be) his sex. (Biologically born) boys can use the boys' restroom; G.G. can't because the school regards him as a girl. That's sex discrimination, plain and simple….
Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What's the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX. QED.
Everything that Dorf says above is absolutely true. GG is treated differently from FF solely because of his biological sex. And differential treatment based on gender is indeed the essence of sex discrimination, just as differential treatment based on race qualifies as race discrimination. Dorf correctly analogizes the situation to the argument that laws banning same-sex marriage discriminate on the basis of sex. Under that regime, invalidated by the Supreme Court last year in Obergefell v. Hodges, Anne had a legal right to marry Bob, but Charles did not. The only difference between Anne and Charles is their gender. As the coauthor of an amicus brief urging the Court to strike down laws banning same-sex marriage because they qualify as sex discrimination, I completely agree that sex discrimination is sex discrimination even if it is in some sense symmetrical. The fact that both men and women were equally forbidden to marry members of the same sex does not change the fact that their legal rights were restricted on the basis of gender. In the same way, the fact that both blacks and whites were once equally forbidden to marry members of the other race does not change the reality that their legal rights were restricted on the basis of race.
Following the same reasoning, the fact that both men and women are required to use sex-segregated bathrooms does not undermine the fact that there is sex discrimination going on. Indeed, such an arrangement is the very essence of sex discrimination. Similarly, a system where there are separate bathrooms for blacks and whites qualifies as race discrimination—even if the regulation applies equally to both races, and the two sets of bathrooms are of equal quality.
II. Why it Still (Probably) Does Not Violate Title IX.
So far so good for GG. The problem, however, is that the above argument could just as easily be made by "BB," a biologically female student who is not transgender, but simply wishes to use the boys bathroom for some other reason (perhaps because she finds its location more convenient). Like GG, BB "can't use a particular restroom because of (what [the school] deems to be) h[er] sex." If it is illeegal sex discrimination to exclude GG from the boys room, the same is true of the exclusion of BB. The logical result would be to make sex-segregated bathrooms illegal in all educational facilities receiving federal funds covered by Title IX.
Supporters of same-sex marriage are more than willing to bite the analogous bullet when it comes to marriage. When courts strike down laws banning same-sex marriage, that eliminates all gender-based restrictions on who you can marry. It does not matter whether you are conventionally male or female, or transgender. Similarly, striking down racial segregation in bathrooms eliminates all laws and regulations assigning bathroom facilities by race, just as Brown v. Board of Education undercut all laws assigning students to public schools on the basis of race.
The Gloucester County case, however, is not like Brown or Obergefell. Transgender rights advocates are not seeking to abolish all sex discrimination in bathroom facilities. Title IX has long been understood to permit sex-segregated bathrooms, locker rooms, and sports teams, and transgender advocates don't challenge that view.
They want to maintain the system of sex segregation, but have transgender students assigned to bathrooms on the basis of their sense of identity rather than biology. A possible historical analogy is Gong Lum v. Rice, the 1927 Supreme Court case where Chinese-American parents argued that the state of Mississippi should classify their daughter as white rather than "colored," for purposes of assignment in the state's system of segregated schools. The Lums were not attacking the state's system of racial segregation, but merely claiming that their child's race was misclassified. Similarly, GG's lawyers maintain that the school district incorrectly classified his sex, by grouping him with girls (based on biology) rather than boys (based on gender identity).
If GG is not challenging the system of sex discrimination, but merely his classification within that system, then the mistake in classification does not itself qualify as sex discrimination. Title IX forbids discrimination on the basis of sex, not misclassification of sex. If this is just a case of misclassification, GG is likely to lose, just like the Lum family ultimately lost their case. Perhaps misclassification violates some other state or federal law. But it does not seem to violate Title IX.
Alternatively, perhaps sex-segregation in bathroom facilities does not qualify as sex discrimination at all, or at least not the kind addressed by Title IX. In that event, GG would lose even if he can prove that he was indeed the victim of sex discrimination, rather than mere misclassification. Such sex discrimination in bathroom assignments would be legal.
The Supreme Court could escape this conundrum by ruling that Title IX does in fact ban sex discrimination in bathroom assignments, regardless of how the law has been interpreted previously. After all, the wording of the law bans all sex discrimination in federally funded education programs, with no exception for bathrooms.
But that solution is highly unlikely. The Court is traditionally reluctant to set aside longstanding interpretations of statutes, even if they were initially mistaken. Unlike in the case of mistaken interpretations of the Constitution, Congress can always change a misinterpreted federal statute simply by passing a new one. Moreover, neither the justices nor American society generally are likely to accept mandated unisex bathrooms in all schools and universities receiving federal funds, which include virtually all public schools and colleges, and the vast majority of private universities.
The justices could also avoid this issue by deferring to the Department of Education's interpretation of the statute, which holds that exclusion of transgender students from the bathrooms of their choice is indeed discrimination. Many legal scholars believe this is the most likely path to victory for GG. They may well be right. A decision based on deference would allow the Court to protect transgender students, while sidestepping the thorny sex discrimination issue. But, as Dorf explains, the case for deference here is actually quite weak. Among other things, he effectively demonstrates that the point at issue is the agency's interpretation of Title IX itself, not merely its interpretation of its own previous regulation permitting sex-segregation in school bathrooms. Jonathan Adler notes some additional flaws in the deference theory here.
To avoid misunderstanding, I should emphasize that I sympathize with the painful situation faced by students like GG, and I have no objection to letting them use the bathroom of their choice, though I'm not sure it's a good idea to have a nationwide federal regulation on the subject. I don't even necessarily object to unisex bathrooms. In college, I spent three years living in a dorm with unisex bathroom facilities, and it was not a problem (the school was not making an ideological statement; because Amherst College had been all-male until the mid-1970s, many buildings still had only one set of bathrooms).
But, setting the issue of deference aside, I am skeptical that GG's sex discrimination argument can succeed unless we interpret Title IX to ban sex-segregated bathrooms generally. And I highly doubt that the Supreme Court is prepared to go that far.