The Obama Education department says schools can’t discriminate against transgender students if they want federal funding, under Title IX of the Education Amendments. This relies on an interpretation of the law, which did not include gender identity in 1972. The law permits sex segregated bathrooms, athletics, and classes that teach body stuff, but by this interpretation they have to permit transgender students to use the facilities consistent with their gender identity. I’m not a legal expert, so this is just a semi-informed thought.
Some conservatives believe Obama is wrong because the new rule tries to make sex socially constructed, which it isn’t. On Fox News Sunday, George Will said:
The ’64 Civil Rights Act bans discrimination on the basis of sex. The administration is saying sex is a synonym for gender identity. Not true. The “party of science” ought to know that sex is a matter of chromosomes. And the — those advocating for transgender rights have been saying for years that indeed it is a matter of sexual gender identity that is not the same as sex. So what is sinister here is the — is the president saying the language of the law simply doesn’t mean what it says.
(This is one of the reasons I don’t defend the sex-versus-gender distinction anymore).
The defense of sex segregation rules that exclude transgender people is based on notions of privacy that are counterintuitive (to me), whereby being seen naked by someone of the same sex is not a privacy violation but being seen naked by someone of another sex is. This has been litigated a lot with respect to prisons, where female prisoners have been successful in using privacy claims in some cases to get same-sex guards assigned to do strip searches and shower supervision. Although I support female prisoners’ attempts to reduce abuse by having female guards, the process we’re going through is part of a progressive weakening of sex segregation, which is mostly good. In fact, I think it would be a shame if we ended up shoehorning transgender rights into this binary-privacy construction, defending the right of transgender people to be seen naked only by the proper binary-category of people.
I don’t think transgender rights require creating new categories of protection, or changing the definition of sex and gender (although there’s nothing wrong with that necessarily). I think transgender discrimination is sex discrimination because it denies people the privileges one sex enjoys on the basis of their sex. I particularly like the logic of Judge Vaughn Walker’s Proposition 8 decision in California, in which he explained how sex discrimination creates sexual orientation discrimination, in that case by denying lesbians homogamous marriage rights:
Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. … Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
I think you can apply the same logic to transgender rights with respect to bathrooms, etc. Laws insisting on sex-matched bathroom use have the effect of forcing only transgender people to use bathrooms with people of the other gender. If you’re going to have sex segregated bathrooms, it’s an equal protection problem if transgender people disproportionately suffer the negative consequence of that. But underlying that, it’s a problem of sex discrimination: because of her sex, a trans woman can’t use the facility that she is most comfortable with.
Under the new education guideline, schools can provide everyone with an individual-user options (but not force only transgender people to use them), or they don’t have to have sex-segregated bathrooms at all (although they would presumably have to provide individual-user facilities as an option).
If people are deeply committed to the gender binary, the last bastions of which are sex-segregated bathrooms and athletics, then I think they are right to be freaking out. As much as transgender rights activists often reinforce the gender binary by asserting a right to cross it without challenging it, the very debate we’re having undermines the concept. Eventually, someone could argue successfully that sex segregated bathrooms are sex discrimination for everyone, which they obviously are – and the justification for that is weakening.