"The Schoolhouse Gate": Gavin Grimm and the Future of Constitutional Law in Public Schools

The Supreme Court has not resolved transgender students' rights to access restrooms-but it won't stay that way for long.

|The Volokh Conspiracy |

This post is the final in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."

Perhaps the most polarizing education case that the Supreme Court has agreed to address in recent years involved whether schools can legally prohibit transgender students from accessing restrooms consistent with their gender identities. The lawsuit stemmed from events that began in 2014, when a rising tenth-grade student named Gavin Grimm informed school officials in Gloucester County, Virginia, that he wished to be referred to with masculine pronouns and addressed by his newly adopted legal name. Ever since Grimm first appreciated the distinction between boys and girls, he felt that he was a transgender male—even if his vocabulary then lacked that terminology. At age six, Grimm began rejecting traditional feminine attire. Years later, when Grimm came out as trans to his parents, they were initially stunned, as neither of them had ever previously encountered the transgender concept. But they educated themselves about the subject and soon resolved to assist with their child's transition. Grimm's parents, in addition to facilitating his name change, would help him secure hormonal treatments to lower his voice and to provide him with a more traditionally masculine appearance.

Despite this affirming parental response, Grimm feared how school officials would react to his transition. His trepidation initially proved misplaced, as Gloucester High School accepted Grimm's request to recognize his male gender identity and pledged its support. As Grimm recalled, "[The school] assured me that teachers and administrators would call me Gavin, and use male pronouns when referring to me, and if anyone gave me any kind of trouble, it would be resolved right away." Roughly one month into the school year, Grimm sought and received permission from Gloucester's principal to begin using the boys' restroom, rather than a single-occupancy restroom located in the nurse's office. Going to a separate part of the school—isolated from fellow students—to relieve himself caused Grimm to feel embarrassment and extreme discomfort. After receiving school authorization, Grimm used the boys' restroom without incident for seven weeks.

But when adults in Gloucester County learned that Grimm was using the male bathroom, the school board held two meetings, where many community members attacked the arrangement. At the first meeting, several speakers emphatically used feminine terms, including "girl" and "young lady," to refer to Grimm. Yet that first meeting was decorous compared with the second meeting, when one speaker called Grimm "a freak" and likened him to a person who, believing he is actually a canine, attempts to urinate on fire hydrants. Grimm, who attended both meetings, pleaded with the school board, "All I want to do is to be a normal child and use the restroom in peace." By a 6–1 vote, the board rejected Grimm's request, and enacted a policy requiring "students with gender identity issues" to use separate, private facilities from their classmates. In response to this change, Grimm sought to avoid using the restroom at school altogether and consequently developed several urinary tract infections. He also decided to mount a lawsuit contesting the school board's policy.

The U.S. Court of Appeals for the Fourth Circuit vindicated Grimm's claim in April 2016. In so doing, it yielded to the Obama administration's interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination "on the basis of sex" for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations, meaning that it would be impermissible to exclude Grimm from the boys' restroom. The Fourth Circuit found that the regulatory terms contained sufficient ambiguity that—in accordance with binding administrative law precedent—the executive branch's interpretation deserved deference. The Supreme Court agreed to review the Fourth Circuit's opinion, but shortly before the Court was scheduled to hear oral argument, the Trump administration rescinded the Obama administration's guidance. The Supreme Court subsequently remanded the case to the lower courts for an assessment of whether Grimm should prevail even amid the transformed legal landscape.

While Gavin Grimm graduated from high school before the Supreme Court ever definitively addressed his claim, it seems unlikely that the Court will be able to avoid resolving his central legal question for long. One estimate suggests that there are somewhere between 165,000 and 555,000 transgender students attending various elementary and secondary schools in the United States, and many of them do so in jurisdictions where educational authorities treat them adversely. If the issue does soon return to the Court, moreover, it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.

Days after the Trump administration rescinded the previous administration's guidance, a district court judge in western Pennsylvania relied upon the Equal Protection Clause to reject a school board's efforts to prohibit three transgender students from accessing restrooms congruent with their gender identities. The Supreme Court's extensive jurisprudence interpreting the Equal Protection Clause to reject sex classifications, Judge Mark Hornak reasoned, provided protection to transgender students in this context. "[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes," Judge Hornak wrote. "The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities."

As in Gavin Grimm's case, the Pennsylvania high school in question had initially permitted transgender students to use their requested bathrooms before the school board enacted a measure eliminating that access. Prior to the district's new policy, the school experienced neither bathroom disturbances nor intrusions upon student privacy. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Hornak, satisfy transgender students' rights under the Fourteenth Amendment.

While it seems predictable that many right-leaning critics would disparage opinions vindicating transgender students' claims, it may be surprising to learn that some commentators can be understood to denigrate such opinions from the left. To these commentators, the notion that a human being can somehow use the "wrong" bathroom is itself profoundly wrong. Indeed, a few prominent legal scholars have contended that it has grown increasingly difficult to justify sex-segregated bathrooms at all. Grimm's attorney expressly disavowed such a goal, stating that his client "is not trying to dismantle sex-segregated restrooms. He's just trying to use them."

Whatever Grimm's precise objectives, though, surely some trans people would regard abolishing sex-segregated bathrooms as an important victory, even if they also acknowledged it is one that seems unlikely to materialize in the current climate. The trans community, like all communities, holds varied ideals and aspirations. As Jennifer Finney Boylan—author of a best-selling autobiography titled She's Not There: A Life in Two Genders—has memorably expressed this point, "If you've met one trans person, you've met . . . one trans person." In one form or another, then, it seems possible the restroom will remain a contested social space in schools—and the larger society that contains them—for many years to come.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

110 responses to “"The Schoolhouse Gate": Gavin Grimm and the Future of Constitutional Law in Public Schools

  1. “Perhaps the most polarizing education case that the Supreme Court has agreed to address in recent years involved whether schools can legally prohibit transgender students from accessing restrooms consistent with their gender identities. ”

    Purported gender identities. Don’t pretend that the whole idea of people asserting “gender identities” that are different from their actual gender is widely accepted.

    1. Looks like Pew found 54% vs 44% against last year in the US. 44% is significant and I would consider it “widespread.”

      Source.

      1. It’s not widespread enough that you can treat it as uncontested.

        1. Back to semantics. I fully think you should use purported all you want, and readers will draw conclusions from that no doubt.
          But insisting other people adopt your semantic paradigm because it’s contested is just begging the question.

          1. insisting other people adopt your semantic paradigm because it’s contested is just begging the question

            Yay ! You are Jordan Peterson and I claim my five bucks.

    2. How widely is gender identity accepted in the medical community?

      1. If by “medical community,” you mean the AMA or other leftist activist group, probably pretty high. If you mean actual doctors, probably the same as the population as a whole.

        1. Let me guess. You’re not a doctor or a lawyer.

          1. He’s a wizard. Doesn’t even need a study to hold forth on what’s probably true!

  2. You get more of what you encourage …

    “At age six, Grimm began rejecting traditional feminine attire. ”

    If “rejecting traditional feminine attire” makes you a man, a lot of lesbians are going to be surprised.

    1. Heck a lot of cisgender women will be surprised.

    2. Bob insists kids get surgery before he’ll call them what they want!

      1. If Grimm wanted to be called the Queen of England, would you?

        No difference.

        I don’t want any mentally ill people spayed or neutered, no matter how much they want it..

        1. I figured that was your actual position.
          So your original point about the clothing not mattering was more about the kid’s gender identity not mattering than the clothing bit.

          Your position on transgenders is noted – you think they exist, but are mentally ill. Which is more than I can say for some comenters here!

          But just because you think running marathons is a crazy abuse of your body doesn’t mean you get to drop in and ban marathons.

          1. The clothing thing shows ludicrous the whole thing is.

            The correct response to “I don’t want to wear a skirt.” is “ok”, not “you must be a man!”.

          2. Is “Gender Identity Dysphoria” a mental illness?
            Does anyone alive suffer from it?; if so, how do we determine who is suffering from it?

            1. I prefer the term “eccentricity” – the list of mental illnesses is continuously evolving, and God forbid I should be “anti-science.”

              But we can tell when someone, bless their hearts, is being eccentric. It could even be endearing, like with the Emperor Norton and his trans-currency (which nowadays would probably have gotten him in trouble, showing that ours may be a less tolerant age).

    3. Since most women in the U.S. do not wear burqas (which are traditionally feminine attire), does that make them men?

      1. This is actually a solid troll effort. B+, made me laugh.

  3. “While Title IX contains regulations that permit sex-segregated bathrooms”

    I double checked, and apparently the text of the statute has an exception for separate *living* facilities, which I suppose would include a girls’ bathroom in the girls’ dorm and a boys’ bathroom in the boys’ dorm,

    HOWEVER…

    There nothing in the text which allows separate bathroom or gym facilities in a non-residential school.

    What was then HEW tried to fill the gap (as it were) by making a bathroom and gym exception in 1975, but I’m wondering by what authority they did so.

    1. I think the authority stems from 20 U.S. Code ? 1682. The regulation is 34 C.F.R. ? 106.33.

      1. Is this a Chevron thing?

        “authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”

        Supposing Chevron goes into the dustbin of history where it belongs, how does this authorize an agency like the Dept of Ed (formerly HEW) to add another exception to the exceptions Congress specifically made to the law (like separate residence halls, father/daughter dinners, and the like, but nothing about bathrooms or gyms in nonresidential areas).

        1. I mean, could the Education Dept by regulation allow separate *classrooms* for boys and girls?

          1. Look, the federal statutes specify the circumstances under which money may be drawn from the Treasury and given to schools which practice sex discrimination. It says father-daughter dinners and separate residences are OK, but says nothing about bathrooms and gyms outside of residential buildings.

            The US Constitution supposedly constrains the executive by saying no money shall be drawn from the treasury except in accordance with appropriations made by law. But it seems the executive can get around this by creative interpretation – simply adding to Congress’s specific list of circumstances in which money may be drawn from the Treasury and given to sex-discriminating schools.

            1. I think I can guess the *political* reason why Congress, in 1972, didn’t provide a bathroom exception in Title IX. This was the same period when Congress was submitting the Equal Rights Amendment t the states, and opponents charged the ERA would mandate coed bathrooms. ERA supporters said separate bathrooms were allowed for in the penumbras of the ERA. It was politically necessary not to give ammunition to these opponents, so if a bathroom exception was put in Title IX but not the ERA, it would have excited suspicions – “if you have to put a bathroom exception in this Title IX law of yours, why didn’t you put one in the ERA?” So Congress’ subjective purpose was probably to let the courts or administrative agencies get them off the hook by ignoring the statutory language they specifically adopted.

              Again, if courts and regulators can allow separate bathrooms under Title IX, why not separate classrooms?

        2. It’s not Chevron. As Marty Lederman explains in his amicus brief in the GG case, separate bathrooms are not an exemption to section 1681 (as you reasoned, the statute doesn’t permit exemptions). They are instead an example of a sex classification that does not do not discriminate on the basis of sex. Lederman details the criteria for when discrimination does not occur starting on page 20.

          1. Lederman (bless his heart) is trying to persuade judges.

            If you’re trying to persuade judges, you have to start with the premise that “OMG you’re all swell people and your previous decisions were soooo wise and right! And your precedents support the conclusion I’m arguing!”

            I was trying to suggest some reasons the precedents were (are) wrong – instead of trying to persuade judges, I’m trying to persuade people on the Internet that the judges (on this issue at least) are full of it. So my arguments won’t achieve any concrete results, but I find it an amusing intellectual exercise.

            Of course I could always be wrong.

  4. It seems unwise to give a 10th grader hormone treatments because they identify as trans. If they have a hormonal disorder, sure, but 10th grade seems early to lock the kid in to transitioning.

    1. Indeed, and the guidance by the APA suggests deferring hormonal treatment until 18.

  5. “All I want to do is to be a normal child and use the restroom in peace.”

    If she wants to be a “normal child” then she would use the proper restroom like everyone else does.

    But that’s not even the most important problem here. What these cases generally miss, and that includes this article, is that the issue that the Supreme Court will have to consider goes beyond restrooms. The bigger issue is the use of school locker rooms and showers. Some schools, with the ACLUs help, have actually mandated that fully anatomically male students must be allowed to use the girls locker rooms and showers, and claim it would be “illegal” to force them to use any privacy accomodation for the others, such as a separate privacy curtain. You also have the issue of males on female sports teams, which is not trivial, and that’s another problem the court will face.

    The accusations of “discrimination” here are ludicrous, and it’s actually opposite what the plaintiffs in these cases are claiming. Everyone has the same right to use the bathroom and locker room that corresponds to their biological sex – equal treatment. What these activists are pushing for is a right that the rest of us don’t get – the right to use the facilities they PREFER. That would be preferential treatment, and by definition, that’s a violation of equal rights. So if you continue go down that road, the only way to fix it is to eliminate sex-segregated factilities altogether.

    1. Why have sex segregated facilities.

      Are they worth the extra expense?

      1. Sex segregated facilities allow men to not have to be affected by the always-much-longer line to use the women’s restroom . . . 😉

        1. Ok that’s it, time for a reality check.

          Some folk, of whatever gender, use a hose to pee. Some don’t. The hose users only need stand up facilities (unless they’re bashful.) All genders need a cubicle for number 2s. Consequently the most efficient arrangement for toilet facilities is to have

          (a) stand up facilities for hose users intent on number 1s
          (b) cubicles for the non hosed, the hosed but bashful and those intent on number 2s

          Stand ups are a very efficient use of space, and allow the hosers to rattle through the facilities quickly. The idea of dispensing with stand ups so we can all have unisex cubicles is very inefficient in terms of space utilisation, and making hosers use them does not simply delay the hosers, it delays the non hosers too because they find the cubicles clogged with hosers.

          Thus except in very small establishments with only room for one or two cubicles, dispensing with stand ups to bow to the great God “equality” is idiotic. Toilets should be segregated on the basis of minimising wait time for all users. Which requires maximising use of standups to get hosers through the system as efficiently as possib;e so as to free up cubicles for those who actually need them.

          1. And while I’m on toilet math….

            …..the most efficient rule for toilet seats (do you leave it up or down) is to leave it in the position it was in when you finished using it. That minimises the number of times someone has to move it.

            PS though gentlemen may prefer to show courtesy to the fair sex by putting the seat down after they’ve had a pee, this is obviously very problematic and agency denying.

    2. Everyone has the same right to use the bathroom and locker room that corresponds to their biological sex – equal treatment.

      This line of argument has a rich history:

      ‘Everyone can marry someone of the opposite sex — that’s equal treatment’

      ‘Can’t we just be color blind — and require equal treatment?’

      ‘Separate but equal’

      ‘Who is man to question God’s intention that they be enslaved?’

      Carry on, clingers.

      1. How is color blindness unequal treatment.

        you did read Justice Harlan’s dissent in Plessy v. Ferguson, right?

      2. The courts have traditionally given more leeway on sex-segregation than segregation by race, and for good reason. By your logic, it’s wrong to have separate men’s and women’s sports teams, because in the past there were racially segregated teams?

      3. Oh, bringing up slavery, that’s a good one.

        Now bake me a cake.

    3. Sex-segregated bathrooms facially discriminate on the basis of sex. As Lederman, et al, argue, the question is whether such discrimination is justified in specific applications. They argue in most cases, it is. But as applied to transgender students, it is not.

      1. Then I would ask – why would transgender students be an exception? Especially since they insist sex is not the same thing as gender.

        1. Lederman’s brief argues there are harms to transgender students that don’t generally apply to other students.

      2. In line with my response to Eddy, I misrepresented Lederman’s argument. Instead, sex-segregated bathrooms facially classify on the basis of sex. The question is whether they discriminate on the basis of sex. That determination in part depends on whether students are harmed.

        1. “That determination in part depends on whether students are harmed.”

          Which raises a host of issues that will not soon be settled but are real. Here are a couple.

          (1) the issue of degree of harm. Is it really very harmful for Gavin to use a reserved facility? How minor must harm be before an accommodation can be considered legally reasonable? Wouldn’t it be better to have a system something like the Americans with Disabilities Act?

          (2) Harmful to whom? How much harm is caused to other girls by having a morphological male using the girls’ shower? Or a morphological female using the boys’ shower? Are effects on others to be dismissed wholesale? It appears we are approaching a situation in which they /are./

          In the military approach to allowing trans people to serve openly (written when it appeared that policy would be implemented), there were specific guidelines for the trans service-person and others to work out arrangements that would accommodate privacy concerns. That appears to be utterly lacking here.

          DOD handbook is here

    4. Which is the same as with same sex “marriage.” They always had the same right to marry one person of the opposite sex. They wanted to do something different entirely and call it “marriage.”

  6. So it comes back to Chevron again. Why do so many bad decisions always seem to come back to arguments over deference? And why, precisely, should courts defer to the administration’s opinion in Grimm’s case then not defer in the PA case?

    It is neither the Judiciary’s nor the Executive’s job to sort this out. If Congress wants Title IX to apply to transgender uses of restrooms, it is their job to say so clearly. Deference is a broken doctrine. Stop trying to polish the turd. It’s time to throw out the deference doctrine and make Congress do their jobs.

    1. Yes. Congress specified “sex” not “gender identity” (and when the law was passed no one understood the meaning of sex to include gender identity). If Congress does not act, then neither the president nor the judiciary (especially not our black robed masters) is suddenly endowed with legislative power to change the law to add “gender identity.”

  7. I stopped reading when the OP kept referring to the girl as a “he.”

    1. Snowflake.

      1. Oh, sick burn (not). I realized it was a waste of time, in that the we know the author’s bias. English is a language where the author could not make us know whose side he was on.

        Furthermore, it’s not the Supreme Court’s job to resolve this transgender nonsense. It is for the elected branches to decide.

        1. You know the author’s position, which is not the same as bias.
          If you’re so turned off by a contrary position that you read bias into it, you’re too delicate for debate.

          You may think it’s nonsense, but you are not the final arbiter. If people are arguing it’s discrimination, it may implicate the Constitution. It may not in the final analysis, but it’s not crazy to say courts take a look.

          Our republic features protections for Individual rights via judicial backstops preventing political winds from infringing upon them.

          1. Oh, I’m to delicate for debate, despite engaging on Reason at all the time? Face it, you made a quip that you thought was funny. Maybe apropos from your perspective, but in the scheme of things, not true.

            I know I’m not the arbiter. I think our elected representatives should be. What we call an individual right are collectively decided. So we are supposed to collectively decide which things we want as a backstop against government power, you know, like through the amendment process? If Congress would pass into law, and President Trump sign, some sort of transgender rights addendum to the Civil Rights Act, I would have no room to complain.

            Rights are a myth. They don’t exist independently of political culture like a tree, the wind, or the sun. The problem with Courts, is that they keep creating individual rights out of thin air, then due to inculcated cultural belief in the Rule of Law we go along with it. I know I am not the first to say this sort of thing, and important mainstream theorists have pointed it out since at least the 1970s.

            1. I was being sarcastic; you debate all the time. Your refusal to engage isn’t due to delicacy, but that doesn’t make it less shameful.

              I’m not some natural rights person, but you’re ignoring a lot of procedure in your description of politics.
              Courts were set up as an elitist force against the political masses. Neither populism nor elitism is bad, but each has excesses that the other can check.

              1. Well, you’re named Sarcasto after all. Doesn’t always come through in writing. But now you’re shaming me? Meh.

                As for why I didn’t bother to read the rest of the piece, is that I knew, at the point the OP called a girl “he” I knew on which side he would want the Supreme Court to come down on. Legal reasoning doesn’t matter at that point, the desired policy is the end game and the reasoning is back-washed. Yes, I know, everyone is guilty of this to an degree.

                As for the origin of rights, I know I am leaving quite a bit out. I won’t subject Reason to excerpts of Federalist 78. But when we get to first principles, rights don’t exist, and have to be agreed upon, or occasionally taken by force. And only force, or collective belief in them, lets them continue to exist. Transgender rights are ephemeral.

                1. I knew on which side he would want the Supreme Court to come down on. Legal reasoning doesn’t matter at that point, the desired policy is the end game

                  So, as I said, once you knew the position, you assumed the bias. I’m sure that saves on brain power, but it makes you the biased one.

                  1. HA! It wasn’t an assumption, now was it. Anyone can tell if you’re a 2nd Amendment supporter or not if you say “modern sporting rifle.” I can tell someone is a clueless gun banner if they say “high capacity clip.” You know there are whole academic fields devoted to interpretation of the written word. This is kiddie pool stuff.

                    1. ‘2nd Amendment supporter’ versus ‘clueless gun banner.’

                      You’re doing it again, and I’m not even sure you know you’re doing it. One doesn’t need to be intimately familiar with gun terminology to have a valid opinion.

                      Just as you are not a lying propagandist, not everyone who takes a position contrary to yours is a lying propagandist.

                      What you are doing is pruning your reality from legitimate disagreement. That’s not generally a healthy place to go.

          2. But these cases aren’t about rights, Sarcastr0. Or at least, that’s not how they were argued in the cases above. These were disputes about statutory interpretation. That’s why the issue of deference to the various administrations’ interpretations were brought up.

            And that’s a problem. Mad_kalak is right that this is a matter for the Legislature to sort out, not one for the Executive to unilaterally decide (and for the next Executive to countermand) nor for the Judiciary to try to divine from the entrails.

    2. It shows a bias. A lot of stuff here does. Live with it.

  8. Quoting from Kindergarten Cop – Boys have a penis. Girls have a vagina.

    1. Some people still can’t handle anything beyond simple, one-or-the-other concepts. Kindergarten-level functioning, one might observe.

      1. Somethings are really binary, like dead or alive, on time or late, male or female. Is it the lack of complexity that blows your mind? The fringe cases at the edge of the margin don’t change the fundamental form itself. A triangle has 3 sides, just because Rev Kirkland draws one with 4 sides and calls it a triangle, it doesn’t make it a triangle despite all the desires to make it so put into it in the world.

        1. Those are great examples, because:

          The definitions of what is alive and what is not are arbitrary, based on a phenomenological starting point. And even then viruses are tricky! And prions…?

          One of the many trippy things about Relativity is that even the sequence of events cannot be clearly specified if those two events are separated by space.

          There is a nontrivial percentage of the population whose sex does not conform to any definition. Look into sports and figuring out gender at some point. No matter how you draw your bright line, there’s always problematic cases!

          1. The % intersex is about 0.018%, and with the loosest definition possible, that is people who are clearly “female” but have genetic anomalies, it is 1.7%.

            At the end of the day, even things like race that do not have a clearly delineated biological line, still exist in that Trump is white and Al Sharpton is black. Exceptions should not set the rules in other avenues, otherwise Sarcasto would want to ban Islam because a nontrivial number of Mohammedans are terrorists.

            1. “The % intersex is about 0.018%”

              Ah, mad_kalak, few transgender people are intersexed. Most fit biologically into the ordinary, binary categories.

          2. No, there is a very clear dividing line, even among intersex people. Same as in the animal kingdom. It all goes back to reproduction: either you produce an egg or you fertilize it. Simple. No human in all history was ever able to do both (and still be fertile), nor has anyone ever switched from one to the other.

          3. There is a nontrivial percentage of the population whose sex does not conform to any definition.

            “Nontrivial” is bearing quite a burden there. As mad-kalak points out, the % intersex is about 0.02% or somewhere around 50,000 individuals in the US. That’s a nontrivial number of people, but it’s, IMHO, a trivial percentage. But trivial percentage or not, these people exist, and so we can’t say that sex is simply binary. It’s binary with very rare exceptions.

            So sex is only binary in the sense that flipping a coin is binary. With a coin there’s heads and tails. And side, and leaning at any angle against the wall, and wedged down the back of the sofa.

            Of course there is a percentage of folk who are unambiguously of one sex, but who feel they are, or that they ought to be, the other sex. They should be treated with kindness and consideration (at least proovisionally – as with everyone else.) But we don’t need to change our biological definitions of sex to cheer them up. We can simply accept that sometimes there are people whose sex is different from their perception of their sex or their desire about their sex, and we can call these concepts (perception or desire about their sex) “gender.”

            Nor, subject to the progress of research, is there any problem in conceding that “gender” may reflect actual brain wiring.

            1. Doesn’t take much to put the lie to sex as ‘Somethings are really binary,’ especially given his amusingly incorrect other examples.

              Those examples, and the efforts you guys put in, is telling. You are straining for a simple world, but the world is much more marvelous than that.

              1. Just because it is impossible to draw a perfect square down to the atomic level, it doesn’t make “squareness” doesn’t exist. Sex is binary, sorry.

                1. Strong argument!

                  Your examples all sucked, and so you return to ipse dixit. Wonder why you can’t seem to convince anyone of your monochrome world.

  9. While I have criticized Justin Driver several times for his political and social beliefs. I want to thank him for this week’s posts and thank the Conspiracy as well for hosting him. This has been a surprisingly interesting subject, one that I would never have expected to be, and his analysis has been very interesting. This is one of the best guest blogs in recent memory.

    I am eager to read Driver’s book.

  10. [D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes,”

    They were free to use the restrooms corresponding to their real sex, just like normal people.

    Requiring people to use the restroom in accordance to their real sex does not discriminate against blacks, as long as it applies equally to whites.

    Requiring people to use the restroom in accordance to their real sex does not discriminate against Mormons, as long as it applies equally to Protestants.

    Requiring people to use the restroom in accordance to their real sex does not discriminate against Eagles fans, as long as it applies equally to Steelers fans.

    Requiring people to use the restroom in accordance to their real sex does not discriminate against Star Wars cosplayers, as long as it applies equally to Halo cosplayers.

    Where was the discrimination?

  11. A theme in these posts is that people who have gender dysphoria need to be medically treated until their gender identity matches their biological sex. But, what if clinical experience suggests that treatment leaves many people unhealthy? What if many people become healthy by transitioning?

    This somewhat reminds me of people who insisted that gays should undergo reparative therapy in order to overcome the mental illness of homosexuality. Hopefully, the evidence of the failure of reparative therapy, along with the stories of gays now out of the closet, has led to a consensus that sexuality is for many people a difficult trait to change, not a behavior to fix. Perhaps the transgender will follow the same road to acceptance over time.

    1. So sexual orientation is immutable, but sex is mutable?

      1. Sexual orientation is for many people highly resistant to change. Ditto for gender identity.

        1. Conscious change? Maybe.

          But people do develop gender dysphoria, even late in life.

          1. Sure, but gender identity is highly resistant to change in many people.

    2. So far, the literature on people with “gender dysphoria” seems to be that those who express it mildly in childhood (the great majority) desist and live their adult lives without the dysphoria – ie whatever was going on their heads conforms to their body. But a minority, typically drawn from those who exhibit stronger dysphoria as children, persist. At present though, we don’t seem to be good enough at early diagnosis to reliably identfy the likely persisters and the likely desisters.

      Consequently, attempting to “adjust” a child’s mind to match its body (if we knew how to do it) might help the majority speed ther way to the elimination of the dysphoria, but might hurt the minority by subjecting them to what they might see as additional torture. Allowing children to attempt to alter their bodies to try to get their bodies closer to their minds eye of their sex runs the opposite risk – irreversibly damaging the majority and helping the minority. The solution, obviously, is to get better at diagnosis. But that’s a long road.

      1. At least we know that adjusting the mind to fit the body does work, because the majority of child dysphorics do it themselves. We also know that in many cases trying to modify the body to fit the mind doesn’t work – the suicide rate of transgender folk remains essentially the same before and after transitioning. Perhaps because with current surgical and hormonal treatments, attempts to modify the body are unconvincing to everyone, including the transgender person.

        Presumably those who have more persistent dysphoria must have brains that are more firmly wired in that direction than the mild cases. The brain is moderately plastic at least in some areas, and so presumably the milder cases can self rewire without too much trouble. The more severe cases can’t. But that doesn’t mean that for the more severe cases, adjusting the body will work either. The body is even less plastic than the brain. When they’re adults, the choice should be theirs, but there is, as yet, no reliable answer.

      2. I have no doubt proper treatment needs to distinguish between those who express a mild form of gender dysphoria (that perhaps shouldn’t be classified as gender dysphoria) and those with severe cases. My issue is with the insensitive and ignorant posts in this forum that categorically say a person is mentally ill when their gender identity doesn’t match their biological sex.

        1. Well, whether such posts are insensitive or ignorant depends a bit on what significance you attach to “mentally ill” and “gender identity.”

          “Gender identity” is a bit of a movable feast, because can people rarely be persuaded to nail down the distinction between wanting to be sex A and believing you are sex A.

          And mentally ill implies some pathology, entailing a value judgement that there is something wrong, a non functionality.

          Wanting to be a barrage balloon is an odd thing to want, but unless you take extreme steps to become one, it’s hard to see an impossible dream as pathological. But believing you are a barrage balloon ? It’s hard to see that as functional. Of course there are value systems in which deafness, impotence, congenital heart disease etc are just fine, forms of interesting differentness, rather than serious impairments of normal function. But I’m content to ignore such value systems as silly. As do the great majority of gender dysphorics who see their dysphoria as a problem, often to the extent of inducing suicide attempts.

          1. So I actually do find it hard to see gender dysphoria, in either the sense of believing yourself to be of a different sex, or seriously wishing to be of a different sex, to the extent that you want to take steps to achieve that transformation, as anything other than mental illness.

            But I don’t regard that as insensitive or ignorant. We don’t laugh at the mentally ill any more do we, any more than we laugh at the physically handicapped? We have sympathy for them, and feel the desire to help them. It doesn’t seem to me that identifying gender dysphoria as a mental illness is cruel abuse, any more than identifyng people with one leg as disabled. Pretending that thinking your biological sex is wrong is anything other than a cruel disability seems, well, cruel to me.

            Just for the avoidance of doubt, I am not suggesting that the mental cause of thinking you are of a different sex is mere temporary fluff that a slap, a cold shower and a good talking to can sort out. Being mentally ill is entirely consistent with an actual brain configuration that is giving you misleading signals about things. The mentally ill are not to blame for their mental illness (except in those cases where they are, eg mental illness induced by drug abuse.)

            1. I suppose I had better add that seriously wanting to be of the other sex, to the extent of wanting to transform yourself, need not be a sign of mental illness if the state of technology is such that you can actually do it. Pursuing an impossible dream is unreasonable. Pursuing a possible one is perfectly reasonable.

              My guess is that actually being able to transition fron one sex to another is, at best, a hundred years away from achievability. But a medical drag act that is sufficient to make the most severe cases feel happier may be within closer reach.

            2. Of course gender dysphoria (distress caused by having a gender identity that is different than one’s biological sex) is a mental illness. What is ignorant is believing that having a gender identity that does not match your biological sex is a mental illness. It is also ignorant to believe that the transgender believe they are a different sex. They instead believe they are a different gender. The continued ignorance is that sex=gender.

              1. It is also ignorant to believe that the transgender believe they are a different sex. They instead believe they are a different gender. The continued ignorance is that sex=gender.

                What does “gender” mean, in the sentence “They believe they are a different gender” ?

                1. Gender is the psychological perception of being male or female (or somewhere in between). And at first glance, that definition appears to beg the question. But on closer inspection, the definition is a result of the far-too-many-cases-to-dismiss of people whose psychological perception doesn’t match their biological sex. That is, the evidence of sex not equaling gender is the clinical experience of people with gender dysphoria, including what works in treating the condition.

                  1. Yeah but that’s just rewording the question, not answering it.

                    “Gender is the psychological perception of being male or female (or somewhere in between)”

                    What does “male” mean in this sentence ? What does “female” mean ?

                    Plainly you can’t mean {male = of male sex} and {female = of female sex} because ” It is also ignorant to believe that the transgender believe they are a different sex”

                    Nor can you mean {male = of male gender} and {female = of female gender} because that’s circular. So if you don’t mean either male sex or male gender, what do you mean by “male” in your definition of gender. And ditto “female” ?

                    1. As I used them, “male” and “female” refer to a person who exhibits and identifies with the socially constructed characteristics of men and women respectively.

                    2. 1. “men and women” being “humans of the male sex and humans of the female sex” respectively ? Or something else ?

                      2. And the “socially constructed characteristics” being what ? What people of the particular society expect from men and women, regardless of whether the behavior in question might be partly biologically rooted ? eg childcare = woman’s work, hunting = man’s work, wearing a dress = woman clothing, wearing pants = man clothing ? Or do you mean that part of behavior that is not biologically rooted, and which might therefore be expected to differ arbitrarily between societies ? Either way, it’s not obvious to me how you can get beyond “male” and “female” to other possibilities if you are relying on society to do the construction.
                      The notion that your gender identity is something intrinsic to you seems to conflict with the notion of identification with socially constructed characteristics. Nor is it obvious that there is a canonical man template or a canonical woman template in modern societies.

                      3. Expanding your defintion we have “gender is the psychological perception of being a person who exhibits and identifies with the socially constructed characteristics of men or women (or somewhere in between)” – this seems to me to be excessive. Why do we need a psycholgical perception as well as exhibiting and identifying ?

                    3. 1. Yes.

                      2. The former, noting that the characteristics vary by society and over time. Gender identity is intrinsic within a particular society at a particular point in time.

                      3. I guess “psychological perception” is redundant with “exhibiting and identifying with”?

  12. “surely some trans people would regard abolishing sex-segregated bathrooms as an important victory”

    If they did manage to abolish sex segregated communal bathrooms, the replacement is more likely to be single occupancy bathrooms rather than gender neutral communal bathrooms.

  13. This is just another battle the pubs are going to eventually lose.

    Since it really affects only a tiny portion of our society, I’m not sure why they feel like it’s an ultimate issue they need to fight.

    Oh well…

    1. Even you have to admit the consequences won’t end with just the tiny portion of society getting their way. Conservatives would be like Charlie Brown going to kick the football one more time trusting the liberal left Lucy swearing she won’t pull it away this time if that’s what they thought. Just look at gay rights….it didn’t stop when they got the right to marry.

      1. Glad that you acknowledge the liberal, progressive line doesn’t stop-nor should it as long as there’s bigotry, racism, hate, etc., built into governments.

        We cannot and never will change ignorant individuals’ weak and scared feelings, but at least they won’t be able to use govt authority to practice their hatred.

        1. No, the line won’t stop until Western civilization is destroyed. Which of course, is the goal.

          Your definition of “bigotry” is “anything that is beneficial to society.”

          1. 1. Since “Western civilization” is basically Europe and North American (well except for the Mexico, amiright!), and you hate Europe, Canada, and most of the US, I’m guessing you can’t wait for the destruction to come.

            2. Huh?

            1. I don’t usually think virtue signaling is a thing, but that’s what this guy spends all his comments doing.

        2. Well, at least you admit it that you’d pull the football away from Charlie Brown, so you sorta answered your own question as to why conservatives won’t cave on this one. Plus, there is just something so fundamental about the male/female distinction that permeates virtually all of nature. You’re asking people to disregard basic biology in advancement of an ideology.

          1. Has anyone told you that ‘if you just lay off the transgender thing, we will stop bothering you?’

            That your appeal has been reduced to ‘I just feel this, and you should to’ is not a good sign.

  14. If Gavin Grimm committed a murder, where would he be incarcerated?
    Would the assignment be a statutory violation?

    1. That is another point that people are trying to avoid. It’s unlikely Grimm still be fighting so hard if the issue was whether to be sent to a man’s prison instead of a woman’s.

    2. Since this occurred in VA and I live in VA, I just sent a request via the Virginia Department of Corrections website asking how they classify transgender inmates.

  15. There was a term for girls who act like boys, it is “tom boy” most girls grow out of it at least to some extent. Some continue to pursue formerly male activities like sports or exhibit personality traits more identified with men, few have clinical “gender dysphoria”.

    I wonder what a proper course is for people who act outside traditional gender roles, especially adolescents.

    Adolescence is a time when people are generally searching for their identity they can be deeply affected by the society around them. I wonder if it a reasonable to make serious medical interventions until a personality is fully formed and can make a knowing and informed decision.

    Finally is seems to me there is a continuum of gendered behavior which can change over a persons life.

    1. As noted before, the APA has quite a bit of literature on gender dysphoria and ‘desistance’ (the formal term for ‘growing out of it’). They are not somehow unaware that it’s a real phenomenon.

      As a result, their guidance is against hormonal therapy until 18.

  16. Use the restroom you want, if people have problems hash it out with the authorities of the building on a case by case basis. This worked for time immemorial until leftists had to make an nationwide issue out of this.

    Whats more interesting to me is how everybody is gaga over the bathroom issue when parents are mutilating their child right before everybody’s eyes.

  17. Did anyone notice that there were no problems reported in the schools while the trans persons were using the bathrooms according to gender identity? Only when the School Boards heard about it turned into one. Now, I know that this is not a legal argument but I wonder why that would be so?
    I find it equally significant that people rehash all the worn-out arguments about “gender disphoria” and other exercises in intellectual masturbation without ever noticing that bathroom choice rarely seems to be a practical problem.

    1. Why not just sexually integrate these facilities, then?

      There is no rational basis for segregation on the basis of gender identity.

      1. Try biology and the psychological and social consequences which extend from it. Integrate things and people will whine and stamp their feet about evil men assaulting or catcalling or eyeraping STRONG INDEPENDENT vulnerable victimized women and pass another raft of individual liberty killing laws to make them 2nd class citizens. This is hardly hypothetical as previous experiments with integrated multiuser bathrooms have ended in disaster and have been reversed even by extremist leftwing institutions. After enough time has passed where everybody has forgotten why integration happened the same type of people who called for it in the first place will probably just resegregate facilities to protect poor women from evil rapey men.

  18. I believe that this trans stuff is an…eccentricity, so my right-wing hater credentials are perfectly in order.

    But as I discussed above, there’s nothing in the literal language of Title IX which seems to justify bathroom sex segregation outside of same-sex school residential buildings.

    To even get to the point where we’re saying Title IX allows segregated bathrooms involves a lot of legal legardemain (sp?).

    Long story short – Congress relies on the executive and the courts to pull clever interpretive games to rescue us from the snarls of the laws Congress itself writes.

    The actual text Congress wrote didn’t allow for sex-segregated bathrooms and gyms? Don’t worry, we’ll have some regulators and judges just pull such an exception out of their…penumbras.

    Which leads me to ask, what if the regulators and judges decide the sex-segregated *classrooms* are a good idea?

    My suggestion: Let Congress write laws which express their meaning in the text, and let the executive and judiciary enforce these laws (if constitutional).

  19. Why don’t they just segregate bathrooms based on the ability to read a map?

Please to post comments

Comments are closed.