People have taken to the streets to protest the recent news that the Trump administration has revoked the Obama administration’s “Dear Colleague” letter demanding that public schools allow transgender students to use the bathrooms of their choice. This issue is being framed by liberal extremists as a “hateful” – their favorite adjective – attack on the rights and dignity of transgender people. Is that really what it is? Or could there possibly be other ways of understanding why the Trump administration has decided to revoke this directive?
There are at least two ways of looking at this issue – from a non-liberal extremist perspective – neither of which involve the slightest shred of “hatred” for transgender people.
This Supreme Court case concerning transgender bathrooms, Gloucester County School Board v. G.G., is about bathrooms – but it has larger, far-reaching, implications. The plaintiff is a female high school student who identifies as a boy. Initially a federal district court in Virginia issued a preliminary injunction allowing “G.G.” to use the boys’ bathroom. On April 19, 2016, the Court of Appeals for the 4th Circuit upheld that ruling, relying on the Department of Education’s interpretation of sex to include “gender identity.” On August 3rd, the U.S. Supreme Court temporarily “stayed” the 4th Circuit’s ruling, thus allowing the school board to prohibit “G.G.” from using the boys’ bathroom. On August 29th, The Gloucester County School board filed a cert petition to take the case to the Supreme Court, and the Court is scheduled to hear oral arguments on March 28, 2017.
Update, 3/6/2017: The Supreme Court decided instead to wipe out the initial ruling of the U.S. Court of Appeals for the 4th Circuit and give it another chance to consider the case. However, in the future, the high court still can decide whether a 1972 prohibition against sex discrimination in education requires that students can use sex-separated facilities based on their gender identity.
This case turns on two issues: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
Let’s take these issues one at a time.
The first issue to consider here is the relationship between the federal government and the states. The Obama directive on transgender bathroom usage was not a law, but a “Dear Colleague” letter. This letter, sent to every public school district in the country, stated that the word “sex” includes gender identity. The Obama administration made it clear to school districts that, if they did not follow the directives of the letter, they could be in violation of Title IX, and they could be at risk of losing federal money.
One issue is this: should the federal government determine how over 13,500 public school districts make policy concerning which bathrooms transgender students can access? Why shouldn’t local school boards be able to develop their own policies on this issue, in consultation with the students, parents, and teachers who are personally involved with the schools in their communities?
A second issue is the larger, long-term implications of equating “sex” with “gender identity.” The federal law Title IX of the Education Amendments Act of 1972 bans sex discrimination in education. But it remains unsettled whether Title IX protections extend to a person’s “gender identity.” The Women’s Liberation Front (WoLF) – a radical feminist organization – argues that sex and gender identity are not the same thing, and that equating these are detrimental for women’s rights. The WoLF – along with the Family Policy Alliance, a conservative Christian organization – filed an amici curiae brief with the Supreme Court. Both organizations are suing the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) in order to challenge their recent redefinition of “sex” in Title IX to include “gender identity.”
Let me emphasize what has happened here: a radical feminist organization and a conservative Christian organization have come to an agreement on the issues of defining sex and gender identity. How is it possible that two organizations that appear to be totally ideologically divergent have found an area of agreement on sex and gender identity? Karla Dansky, of the Women’s Liberation Front, recently appeared on the Tucker Carlson show to explain how radical feminists and Christians have come together on this issue. There are further explanations available here.
To briefly summarize their arguments, the DOJ/DOE joint guidance defines “gender identity” as “an individual’s internal sense of gender,” stating that an individual’s “gender identity” may be “different or the same” as the individual’s sex. For example, a male person may declare that he has an “internal sense” of being feminine. According to the DOJ and DOE, he would then be said to have a “gender identity” that is the opposite of his sex. The guidance mandates that a student’s “gender identity” must be treated as the student’s sex “for purposes of Title IX and its implementing regulations.” Because there is no way for a school to objectively determine an individual’s internal sense of “gender identity,” schools must organize facilities and programs on the basis of whatever students declare their feelings to be. An individual’s “gender identity” has no limitations on changing over time, even as frequently as from hour to hour, depending on the individual’s “internal sense.” When sex-based legal protections do not necessarily refer to any material state of being male or female, but instead to an internal feeling of “gender identity,” the category of sex becomes meaningless.
The redefinition of “sex” to include “gender identity” effectively renders sex meaningless as a legally protected category in federally funded schools and universities (which is almost every school and university in the country). Moreover, this redefinition of “sex” to “gender identity” effectively strips women and girls of their legal protections, as it eliminates the ability to legally distinguish between males and females in federally funded schools. The law that applies to federally funded schools, Title IX of the Education Amendments Act of 1972, protects women and girls from discrimination on the basis of sex in education programs or activities that receive federal funding. The category of “gender identity” totally supplants Title IX’s original meaning of prohibiting discrimination on the basis of sex. If “gender identity” is the same as “sex,” then males can access female-designated spaces, athletics, programs, scholarships, and awards.
Let’s think about the implications here. Title IX was premised on the ability to make a sexed distinction, as it was explicitly legislated with the aim of raising the level of educational opportunity for females. The guidance, however, mandates that schools must open up women’s and girls’ bathrooms, locker rooms, and dormitories to any male who “identifies” as requiring access to them. Girls’ rights to personal privacy and freedom from male sexual harassment, forced exposure to male nudity, and voyeurism have thus been eliminated. The guidance characterizes any girl’s objection to this as mere “discomfort” that has no justification for accommodation within school policy. Under the guidance, if girls object to a male in their spaces or programs, school staff and contractors are prohibited from even acknowledging the girl’s complaint, as to correctly identify the male in question as a male or a “he” would constitute a violation of Title IX, as it is now being interpreted.
But Title IX is being overturned not just in areas of bathrooms and locker rooms, but in all aspects of its implementation – unfairly disadvantaging girls through the very legislation that was meant to protect their rights. If “gender identity” is the same as “sex,” then males can state that their gender identity is “female” in order to apply for scholarships designed to help women. If “gender identity” is the same as “sex,” then women’s and girls’ sports teams appear to have no material basis for being separated from male competitors. Recently, a male student in Alaska took home all-state honors in girl’s track and field, a position which would have otherwise gone to a female athlete. Despite the male’s declaration of “gender identity” which grants him access to female sports teams, he still has all the male physical advantages of bone strength, ligament strength, muscle mass, etc. Female sports were created separate from males as a way to give females a fair chance at competition, yet this basic facet of material reality is now being disregarded.
The rights of women and girls are so erased by the joint guidance that it even includes new policy placing restrictions on the speech of school staff and contractors, preventing them from fully discussing the impact had on female students. At its heart, this legal battle is about considering the harmful consequences in redefining the category of “sex” in federal civil rights laws. When discrimination against women and girls can no longer be attached to the category of sex, females as a class lose the ability to contest their systemic mistreatment.
In light of the far-reaching consequences of redefining “sex” to include “gender identity,” one would think that academics would want to foster dialogue on this topic. Sadly – and predictably – extreme liberals attempt to silence any discussion about the implications of gender identity. In 2016, Daniel Harris published an essay in The Antioch Review titled “The Sacred Androgen: The Transgender Debate.” In this essay, Harris expresses complete support for trans people’s right to undergo sex-reassignment surgery, and to be free of violence. As he writes, “I fervently support TGs’ rights to transition and to do so without fear of reprisal.” The essay focuses on how, in his view, the transgender movement focuses on the wrong issues – like enforcing correct pronoun usage and promoting a culture of celebrity body modification.
Yet liberal extremists opposed any discussion – no matter how reasoned – about the concept of transgender, and its implications, because they have identified transgender people as a sacred minority group. Liberal extremists argued that Harris was promoting “hate speech” and violence against trans people. An online petition to the editors of The Antioch Review accuses Harris’ arguments of bearing close similarities to the “work of the International Eugenics movement and its parallel underpinnings to the propaganda of the Nazi Regime’s “Master Race.”
Additionally, over 4,000 writers, editors, and librarians signed a letter not just denouncing the opinions articulated in the essay, but the fact that The Antioch Review published the essay. The letter states, “As writers, editors, and librarians in the literary community we denounce the Antioch Review’s decisions not only to publish this piece, but subsequently to tout it on social media as ‘not-to-miss,’ ‘sure to entertain, intrigue, and provoke,’ and an opportunity ‘to take our debate to a new level on the topic of transgenders’ [sic], and we ask for accountability from the editors for this decision.”
These writers, editors, and librarians stand for the censorship of speech that they deem to be “hate speech.” As their letter claims, “Hate speech is not protected speech.” On the surface, hate speech sounds terrible and like something we would not want. But there are at least two major problems with this line of reasoning.
First, hate speech is protected speech.
The U.S. Supreme Court has recognized very few exceptions to the First Amendment,” says Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Penn State, which was established in 1992 to promote awareness and understanding of the principles of free expression to the scholarly community, the media and the general public.”Many people are mistaken in their belief that offensive speech or hate speech is not protected,” says Richards. “The Supreme Court has repeatedly affirmed the notion that unpopular speech enjoys full First Amendment protection. As the late Justice William Brennan put it, in a case involving flag burning, ‘If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'”
Second, there is no universally agreed upon definition of hate speech. Someone could easily say that the promotion of capitalism as an idea is “hate speech” because capitalism flourished, at least in part, until the late 19th century in America, through the institution of slavery – a despicable institution founded upon extreme hatred for Africans. Another person could make the argument that feminism is a form of “hate speech” because there are some feminist theorists who promote hatred for men. The “hate speech” argument is a dangerous slippery slope.
It is extremely troublesome that writers, editors, and librarians – the very people who are supposed to be proficient in engaging with ideas – are organizing to suppress ideas. A university literary journal is exactly the place where people should be able to grapple with difficult topics like the implications of gender identity, not the place where people should be silenced by those who make their living because of ideas. Liberal extremists claim to support free speech – but only if that speech affirms their political perspectives.