Mark Pulliam Jul. 26, 2016, 10:22am


This column first appeared July 26 on Library of Law and Liberty.

Societal attitudes and mores can and do change dramatically over time, but (aside from Humpty Dumpty) the meaning of commonly understood words does not. Slavery, existing at the Founding, was abolished following the Civil War through the 13th and 14th amendments to the Constitution. Suffrage, which many states could and did restrict to white men (and literate property owners at that), was eventually extended to blacks and women through the 15th and 19th amendments. Traditional gender-role distinctions that were sacrosanct enough to defeat ratification of the Equal Rights Amendment in the 1970s are now being altered by legislation—including the once-inconceivable notion of women serving in combat roles and women registering for the draft.

Even the judicial legerdemain culminating in the recognition of same-sex marriage in Obergefell was a result of an elaborate kabuki dance that took decades (beginning with Romer v. Evans in 1996 and becoming explicit with Lawrence v. Texas in 2003).

The word “sex,” however, used in civil rights statutes enacted during the 1960s and 1970s, still means what it has always meant: the biological status of being male or female. By mendaciously insisting otherwise, with its recent transgender bathroom edicts, the Obama administration has demonstrated a shocking disregard for the plain meaning of language, and an insolent indifference to congressional drafting. Nearly half the states, in three separate lawsuits, are challenging the Obama administration’s specious ultimatum to the nation’s public schools: comply, or forfeit federal funding.

Obama’s Departments of Justice and Education are asserting an interpretation of Title IX of the Education Amendments of 1972 that requires school districts receiving federal funds to allow biological males who self-identify as females to use facilities reserved for females (not just bathrooms but also locker rooms and showers), and vice versa, on the grounds that enforcing sex-segregated facilities constitutes discrimination on the basis of sex.

The DOJ and DOE contend that the word “sex” includes “gender identity” (so, for example, a male who “identifies” as female must be treated as a female), and that, as applied to so-called transgenders (those who identify as the opposite sex), sex-segregated facilities are “discriminatory.” As the state of Texas and 12 other states argue persuasively in a pending federal court lawsuit, the DOJ’s and DOE’s position is utterly baseless—bordering on frivolous. The states seek a preliminary injunction to prevent the Obama administration from enforcing the nonsensical mandate, which was not even promulgated as a formal regulation. These executive departments are attempting to transform American society via a form letter (!) they claim has the status of a “significant guidance,” in administrative law parlance.

The contention is so preposterous that one questions whether it is made in good faith. When Congress enacted Title VII of the Civil Rights Act of 1964, employers were forbidden to discriminate on the basis of enumerated characteristics, including “sex.” Neither “sexual orientation” nor “gender identity” were mentioned. (Indeed, in 1964, the concept of “transgender” wasn’t even on the legal radar screen; the term “gender identity” wasn’t mentioned in a law review article dealing with Title VII or Title IX until the 1980s.)

Eight years later, Congress passed Title IX, which prohibited discrimination on the basis of “sex” in federally funded education programs and activities. Title IX expressly allows sex-segregated dormitories and sports teams. Senator Birch Bayh (D-Ind.), one of Title IX’s sponsors, declared on the Senate floor during debate that “We are not requiring that . . . the men’s locker room be [sexually] desegregated.”[1] The initial Title IX regulations expressly permitted single-sex restrooms, locker rooms, and shower facilities.

The pleadings and briefs filed by Texas and the other 12 states convincingly demonstrate that there was a contemporary consensus, when Title IX was enacted, that the law would not require any alteration of separate restrooms for males and females. Commonsense considerations of privacy and modesty were accepted by legislators, regulators, and legal scholars.

Ironically, dating back to Louis Brandeis’s path-breaking 1890 article in the Harvard Law Review, “The Right to Privacy,” Progressives used to treat privacy as an important right. Even Ruth Bader Ginsburg, then a professor at Columbia Law School, attempted to debunk opposition to the pending Equal Rights Amendment (which declared that “equality of rights under the law shall not be denied or abridged … on account of sex”) by opining in the Washington Post that “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some cases required, by regard for individual privacy.”

Now, apparently, ideological fads override students’ privacy rights.

The meaning of the term “sex” has never changed, but the Left’s political agenda has grown increasingly aggressive and intrusive in its effort to compel acceptance of a miniscule percentage of the population which claims to be transgender (approximately 0.3 percent), sacrificing the overwhelming (99.7 percent) majority’s privacy, safety, and associational rights in the process.

On numerous occasions since Title IX was passed in 1972, liberals have endeavored to extend the coverage of federal civil rights laws beyond protection of racial/ethnic minorities and women to “sexual orientation” and “gender identity” by proposing language expressly embracing those categories. In 2013 and 2015, legislation was proposed to amend Title IX itself to expand coverage to include “gender identity.”

Those efforts—unsuccessful in the case of Title VII and Title IX—unmistakably recognize that the word “sex” does not include “sexual orientation” or “gender identity.” Nevertheless, with its recent executive edicts, the Obama DOJ brushes aside decades of congressional deliberation and academic commentary by radically reinterpreting—to the point of redefining—the word “sex.” (Under President Obama, the EEOC, Department of Education, and even OSHA have adopted—also by executive edict—the same position regarding statutes they enforce.)

Incredibly, even though the May 13, 2016 “Dear Colleague” letter sent jointly by the Departments of Justice and Education states that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX,” the same letter permits covered schools “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.”

It’s hard to see how such inconsistency can be maintained. If the administration’s culture warriors sincerely believed that “gender identity” was the same as “sex,” they would not tolerate sex-segregation, even in sports. The exception seems transparently calculated to placate the supporters of girls’ and women’s sports (which Title IX has done much to promote).

In Texas v. United States, pending before Judge Reed O’Connor in the Northern District of Texas, a coalition of 13 states accuses the Obama administration of rewriting federal law “by administrative fiat.” The plaintiffs allege that the agencies and officials named as defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Defendants cannot foist these radical changes on the nation.

Laws enacted by Congress through deliberate and democratic processes cannot unilaterally be disregarded or cavalierly rewritten by the executive branch. President Obama’s ludicrous insistence that “sex” means “gender identity” is, unfortunately, typical of his contempt for the Constitution’s system of checks and balances. Executive overreach is Obama’s signature strategy, and—unless stopped—will be his administration’s enduring legacy.

In this instance, he has encountered significant resistance. The legal battle over the Obama administration’s transgender edicts is now being waged on multiple fronts. In April, a Fourth Circuit panel (loaded with two Obama appointees) upheld the rewriting of Title IX through what Ed Whelan (in National Review) called a “bureaucratic diktat.” Litigation is now pending in North Carolina, Texas, and (in a case recently filed on behalf of 10 states) Nebraska. Texas’ motion for a preliminary injunction will likely be heard sometime in August. Stay tuned.

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