Title IX Is a Dangerous Tool for Extending Transgender Kids' Rights
Making trans kids more comfortable is a laudable outcome, but some concern is merited.
The federal government informed schools Friday that they are obligated to grant transgender students access to facilities that correspond with their expressed gender—with a few key exceptions. Conservatives are outraged, as expected. Texas Gov. Greg Abbott has vowed to defy "King" Obama and resist implementation of the guidance.
I admit my sympathies are mostly with transgender kids, who endure routine social discomfort at schools. I think the impact of the new guidance is positive in that it will make life easier for these students.
All that said, concerns about the method of ensuring these accommodations strike me as not entirely absurd. This is because the method is Title IX. Title IX, you will recall, is a one-sentence statute prohibiting gender discrimination in educational institutions that receive public funding, which is all well and good. But the Education Department's Office for Civil Rights—which is responsible for monitoring schools' compliance—has interpreted this statute very broadly over the past five years: even going so far as to force colleges to adjudicate sexual assault in accordance with illiberal principles, and redefining harassment to include virtually everything that offends any person for any reason.
Take, for example, Colorado State University-Pueblo believing that Title IX requires the institution to suspend a student for having seemingly consensual sex with another student. Consider the City University of New York instructing professors not to used gendered salutations because they might violate Title IX. It's not crazy to think very broad and confusing guidance relating to gender, teenagers, locker rooms, and schools will produce some bizarre side effects, especially given that this is an administrative dictate—not a new piece of legislation that was carefully considered by Congress. Again, that does not mean the overall impact of the new guidance will be negative—just that Title IX has proven to be an imperfect tool for curing societal ills.
It should come as no surprise that the guidance—which was jointly issued by the Education and Justice Departments—contains telling gaps. Broadly speaking, the guidance says this: "Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex."
Functionally, this means that teenagers are the gender they claim to be, rather than the gender assigned to them by virtue of their birth or public records. Schools must treat them in accordance with their gender identity, meaning that transgender kids get to use the restrooms and locker rooms that correspond with their expressed gender. If this makes other students uncomfortable, the schools may provide alternative facilities for those students "who voluntarily seek additional privacy," but they are not required to do so.
The guidance contains a glaring exception, however: athletics. Read this:
Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others' discomfort with transgender students. Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students' participation on the competitive fairness or physical safety of the sport.
I interpret this to mean that schools may prohibit students who are biologically female (but identify as male) from playing on the boys' football team (and vice versa). This makes some logical sense, given the obvious physical differences between kids who were born male and kids who merely identify as male. But I don't know that it makes any legal sense, given the government's extremely gender-flexible interpretation of Title IX. Is there really a legal rationale for letting teens who are biologically male but self-identify as girls use the girls' locker room, but not play on the girls' softball team? Assuming that I'm reading this guidance correctly, it seems like a weird place to draw the line. But perhaps the government is merely leaving the sports question unresolved for now.
It's also impossible to ignore the extent to which the new guidance neglects the (perhaps illegitimate, but nonetheless real) privacy concerns of cisgender kids. What if a boy doesn't want to use the same locker room as a trans boy? It's his duty to use a more private facility—one the school has no obligation to supply.
I don't really have a problem with that—I'm not averse to the idea that extending equal rights to the trans kids is more important than protecting the feelings of the cis kids. But I'm a bit surprised the federal government feels that way, because it has consistently and vigorously interpreted Title IX in a manner that suggests any instance where someone is offended could constitute sexual harassment.
Look at it this way: Artwork and essays concerning consensual sexual relationships have been accused of creating a hostile educational environment under the government's interpretation of Title IX. Professor Teresa Buchanan ran afoul of Title IX for telling sexual jokes in her classroom. Could it really be the case that Title IX prohibits risqué jokes but requires young women to shower alongside people whose biological gender makes them uncomfortable? The trend has been to always believe the purported victims and never question their experience—if they say they were harassed, then they were. It will be interesting, to say the least, to see if this logic still holds in the genuinely uncomfortable domain of teen locker rooms.
Michelle Goldberg reflects on many of these same ideas for a recent Slate piece:
There's no coherent ideology in which traumatized students have the right to be shielded from material that upsets them—be it Ovid, 9½ Weeks, or the sentiments of Laura Kipnis—but not from undressing in the presence of people with different genitalia. If we've decided that people have the right not to feel unsafe—as opposed to the right not to be unsafe—then what's the standard for refusing that right to conservative sexual abuse victims? Is it simply that we don't believe them when they describe the way their trauma manifests? Aren't we supposed to believe victims no matter what?
So far, progressives have mostly responded to conservative complaints about opening up bathrooms to trans people by loudly insisting that trans bathroom predators are a myth. This elides the fact that we have no working definition of what differentiates a trans woman from a man claiming to be a woman for iniquitous ends. There are, in fact, instances of men who've donned drag to spy on women in bathrooms or assault them in female-only spaces such as homeless shelters. There may well be more. Those who want to defend laws on gender-inclusive bathroom access should have an argument besides incredulous denial.
Rather than engaging in a victimology arms race, they might ground their arguments in the language of civil liberties. Civil libertarians know that we don't punish people as a group for the actions of individuals. They know that in a diverse, fractious, free country, sometimes other people are going to exercise their rights in a way that upsets or even scares you. And they know that protecting civil liberties sometimes means forgoing other kinds of protection. It would be easier for people on the left to make that argument now, though, if they hadn't spent the past few years arguing the opposite.
Goldberg is exactly right.
While the conservative objection to accepting trans people into polite society is bigoted and wrong, the left's conflation of emotional harm with physical harm—particularly on college campuses—has empowered the right to disingenuously borrow their arguments in situations where it suits them.
At the same time, there are thorny legal issues at stake here—ones that the government clearly hasn't entirely worked out yet. It's wrong to discriminate against trans kids, but it's not wrong to worry about the unforeseen consequences of Title IX, given the government's terrible track record, penchant for overreach, and one-sidedness when it comes to gender harassment law.
