The transgender debate: do women have rights to privacy?

The recent controversies over transgender bathrooms in the USA and transgender kiwi weightlifter Laurel Hubbard winning a women’s tournament in Australia after a long career as a biological male weightlifter have highlighted the thorny issues of privacy and equality of women. RYAN ANDERSON and MELODY WOOD of the Heritage Foundation  lay out the case for caution instead of leaping on the bathroom bandwagon for the sake of being ‘trendy’.

[Note: the following is abridged from their report]

All across America, parents, teachers and local school districts have been having conversations about how best to accommodate the dignity, privacy, and safety concerns of students who identify as transgender while also addressing the dignity, privacy, and safety concerns of other students. Schools found win-win solutions, such as the creation of single-occupancy restrooms and changing facilities for students who identify as transgender while retaining girls’ and boys’ rooms for biological girls and boys, but activists attacked these commonsense compromise policies as “transphobic.”

In May 2016, the Obama Departments of Justice and Education released a long joint guidance letter declaring that “both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX (the US sexual discrimination law).” The letter directed schools to allow “students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.”[i]

In other words, access to sports teams, bathrooms, locker rooms, dormitory rooms, and hotel rooms for field trips would have to be based on the self-declared gender identity of the students.

The Obama Administration explicitly rejected compromises such as single-occupancy facilities: “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.” Similarly, with respect to campus housing or hotels for off-campus trips, “a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.”[ii]

The “Dear Colleague” letter makes clear reference to the importance of privacy concerns, but the only privacy concerns it acknowledges are the concerns of students who identify as transgender: “protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity.”[iii]

It gives short shrift to the privacy concerns of other students. The guidance states that “the desire to accommodate others’ discomfort” is not a legitimate basis for schools’ retaining sex-specific facilities even if they also provide private accommodations for transgender and other students.[iv]

The guidance does not allow schools to inform students (or their parents) whether they will have to share a bedroom or locker room with a student of the opposite biological sex. At most, it says that a school “may” (not must) “make individual-user options available to all students who voluntarily seek additional privacy” so long as students are allowed full access to the intimate facility of their choice based on their subjective gender identity.

When it comes to athletics, the Obama directives are confusingly vague, telling schools that they may not “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.”[v]

Thus, both the specific teams on which a student athlete who identifies as transgender must be allowed to play and the sports in which the student must be allowed to participate are unclear, which would likely prompt many schools to make all of their athletic policies based on gender identity to avoid having to find out the boundaries through lawsuits.

In response to this letter, 24 states filed lawsuits against the Obama Administration.[vi]

On August 21, 2016, federal District Judge Reed O’Connor issued a nationwide injunction blocking enforcement of this gender identity mandate, holding that “[i]t cannot be disputed that the plain meaning of the term sex as used…following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”[vii]

The Obama Department of Justice appealed this ruling on October 20, 2016, but on February 10, 2017, the new Trump Department of Justice withdrew that motion for a stay and cancelled the scheduled oral arguments.[viii]

On February 22, 2017, the Trump Departments of Justice and Education formally rescinded the “Dear Colleague” letter.

The Obama Administration’s transgender directives are bad policy for several reasons.

The Obama gender identity guidelines ignore legitimate privacy concerns. Sex-specific intimate facilities exist in the first place to provide a sufficient level of bodily privacy. In her majority opinion for the Supreme Court forcing the Virginia Military Institute to become coeducational, Justice Ruth Bader Ginsburg wrote that it “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.”[ix]

Some critics had argued that the Equal Rights Amendment, a predecessor of Title IX that never became law, would have required unisex intimate facilities. In 1975, when Justice Ginsburg was a law professor at Columbia University, she wrote an op-ed article for The Washington Post explaining that a ban on sex discrimination would not require such a ridiculous outcome:

“Again, emphatically not so. Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle”.[x]

In other words, the Constitution required protection for the right of bodily privacy. Justice Ginsburg’s colleague, Justice Anthony Kennedy, makes a related point that acknowledging biological differences is not the same as engaging in mere stereotyping:

“To fail to acknowledge even our most basic biological differences…risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.“[xi]

Yet the 2016 Obama Administration DOE/DOJ “Dear Colleague” letter instructs schools that they may not notify students (or their parents) about whether they will have to share a bedroom, shower, or locker room with a student of the opposite biological sex.

The Women’s Liberation Front (an organization from the left) and the Family Policy Alliance (an organization from the right) point out the double standard when it comes to whose privacy is being protected: “It is truly mind-boggling that informing women as to which men have the ‘right’ to share a bedroom with them is an ‘invasion of privacy,’ but it is not an invasion of privacy to invite those men into women’s bedrooms in the first place.”[xii]

It is entirely reasonable for people not to want to see the opposite sex in a state of undress, regardless of their gender identity. Likewise, it is entirely reasonable for people not to want to be seen in a state of undress by people of the opposite sex, regardless of their gender identity. The Alliance Defending Freedom (ADF) explains this long-running American practice:

“In the late 1800s, as women began entering the workforce, the law developed to protect privacy by mandating that work place restrooms and changing rooms be separated by sex. Massachusetts adopted the first such law in 1887. By 1920, 43 of the (then) 48 states had similar laws protecting privacy by mandating sex-separated facilities in the workplace. Because of our national commitment to protect our citizens, and especially children, from the risk of being exposed to the anatomy of the opposite sex, as well as the risk of being seen by the opposite sex while attending to private, intimate needs, sex-separated restrooms and locker rooms are ubiquitous in public places.“[xiii]

This concern is particularly heightened for minors, especially as children go through puberty and rightly desire bodily privacy. “Specifically,” adds the ADF, “minors have a fundamental right to be free from State compelled risk of exposure of their bodies, or their intimate activities, such as occur within restrooms and locker rooms, to the opposite biological sex.”[xiv]

This is also of particular concern to women who have been victims of sexual abuse. Seeing a naked male body, particularly the genital area, can function as a traumatic trigger. Whether the naked male body they suddenly see in front of them belongs to a man who identifies as a woman (and has not had surgery) or a man who identifies as a man (and has not had surgery) is of no moment to survivors of sexual abuse who are caught in that situation.

Safe Spaces for Women, a group that “provides survivors of sexual assault with care, support, understanding and advice,” recently submitted an amicus brief to the Supreme Court explaining how gender identity policies can negatively affect such women:

“Safe Spaces for Women has a strong interest in ensuring that the voices of women who have suffered sexual abuse are heeded when policies are made that may directly affect their physical, emotional, and psychological well-being. This includes policies that require educational institutions covered by Title IX to admit to female showers, locker rooms, and restrooms biological males who identify as female. While Safe Spaces for Women bears no animus toward the transgendered community, it is deeply concerned that…survivors of sexual assault are likely to suffer psychological trauma as a result of encountering biological males—even those with entirely innocent intentions—in the traditional safe spaces of women’s showers, locker rooms, and bathrooms.”[xv]

The brief goes on to note that the Obama Administration issued its guidance “without giving those affected a voice in the process…improperly circumvent[ing] the notice and comment process when that process was needed most.”

In an amicus brief submitted to the Supreme Court, the Women’s Liberation Front (WoLF) and the Family Policy Alliance (FPA), while generally disparate politically, jointly acknowledge the dangers of redefining sex for women:

“[R]edefining “sex” to mean “gender identity” is a truly fundamental shift in American law and society. It also strips women of their privacy, threatens their physical safety, undercuts the means by which women can achieve educational equality, and ultimately works to erase women’s very existence.”[xvi]

WoLF and the FPA argue that redefining Title IX would particularly affect women’s educational access by allowing scholarships that were intended only for women to become available to biological men who identify as women. This undermines the original purpose of Title IX: “Congress enacted Title IX as a remedial statute for the benefit of women, and granting Title IX rights to men who claim they are women necessarily violates the rights Congress gave women in this law.”[xvii]

In addition, allowing anyone who identifies as a woman to be considered a woman erases the very meaning of womanhood in law:

“When the law requires that any man who wishes (for whatever reason) to be treated as a woman is a woman, then “woman” (and “female”) lose all meaning. With the stroke of a pen, women’s existence—shaped since time immemorial by their unique and immutable biology—has been eliminated by Orwellian fiat.”[xviii]

Another brief, filed on behalf of the Women’s Liberation Front (WLF), highlights the strange development of Title IX protections. Originally intended to ensure educational rights for women, they are now being used to deny women privacy, safety, educational opportunity, and equality: “The idea that women and girls must surrender their rights and protections under Title IX—enacted specifically to secure women’s access to education—in order to extend Title IX to cover men claiming to be women is a jaw-dropping act of administrative jujitsu.”[xix]

The WLF stresses that this redefinition of sex is a way to erase the legal standing of women:

“Redefining “sex” to mean “gender identity” means that the sex-class  comprising women and girls now includes men, with all the physiological and social characteristics that come with being male (and vice-versa). Likewise, the agencies make little effort to keep up the pretense that “transgender” is a coherent descriptor; under their policy a transgender person is simply any person who claims to be so, and that person’s “sex” is whatever they say it is whenever they say it. By rendering men legally indistinguishable from women, the policy threatens to extinguish the very meaning (and independent legal existence) of women.”[xx]

There are concerns about athletic fairness for women and girls as well. If biological males play on women’s sports teams, they often have an advantage. In Alaska, high school girls have already lost medals in track competitions because of their inability to compete with a male who identifies as a girl. In a video put out by the Family Policy Alliance’s Ask Me First campaign, one of the girls who raced against this athlete talks about the unfair aspects of allowing biological males to compete in races against girls:

“There was obviously one girl in each of those races who did not get to compete because of this athlete. It’s not fair scientifically—obviously male and female are made differently. There are certain races for males, and certain races for females, and I believe it should stay that way.”[xxi]

Girls are also on the losing end when students who identify as transgender taking hormones compete against them in sports. In February 2017, a biological girl taking testosterone as part of a “transition” process won the Texas state championship, completing an undefeated wrestling season against other girls (who were not taking testosterone supplements).[xxii]

Accommodations should be reached so that biological girls can compete on a level playing field instead of being forced to compete and lose against biological males or biological girls who are taking male hormones that can enhance their performance.

The words “girl” and “women” mean something, and in the words of rape survivor Kaeley Triller Haver, “When gender identity wins, women always lose.”[xxiii]

What Needs to Be Done

Title IX was enacted to ensure that girls and women would have equal opportunities in education. It prohibited any school that receives government funding from discriminating on the basis of sex, and it did this while recognizing privacy concerns and stating that living spaces could remain separate for the different sexes. Once Title IX was implemented, individual schools were able to find nuanced solutions to the concerns raised by students who identify as transgender.

But beginning with the 2010 “Dear Colleague” letter and culminating with the 2016 “Dear Colleague” letter, federal bureaucrats have extended the scope of Title IX. Title IX has become a tool to force schools and programs receiving federal funding to allow biological boys in girls’ restrooms, locker rooms, and sports teams. Religious schools have come under attack for filing for exemptions from Title IX so that they can continue to operate in accordance with their beliefs.

What can be done to return Title IX to its original, laudable purpose of granting women equal opportunity?

First, the Department of Education should explicitly return to the intended meaning of “sex” in Title IX. While the Trump Administration’s Department of Education should be praised for rescinding the bad Obama-era guidance, repealing guidance without a clear replacement gives bureaucrats and judges too much room for mischief. The DOE should issue clear guidance to state that “sex” in Title IX means biological sex, not gender identity. By doing so, the department could ensure the continued protection of women and girls in school bathrooms and locker rooms and on sports teams. Through this guidance, it could emphasize that accommodations for students who identify as transgender are encouraged while retaining the privacy rights of women and girls in the school system.

Second, Congress should ensure that Title IX will continue to protect girls and women. There are three actions that Congress can take to preserve Title IX’s original intent.

• Congress could specify that “sex” does not mean “gender identity” in Title IX and civil rights law. Language included in H.R. 5812, the Civil Rights Uniformity Act, for example, introduced by Representative Pete Olson (R–TX) in 2016, would do exactly that.118

See H.R. 5812, Civil Rights Uniformity Act of 2016, 114th Cong., 2nd Sess., https://www.congress.gov/bill/114th-congress/house-bill/5812/text?format=txt (accessed March 13, 2017).

The act clarifies that for the purpose of interpreting civil rights statutes, the term “sex” does not mean “gender identity.” This would prevent current and future abuses of Title IX and other civil rights law and ensure that unelected bureaucrats and judges would not get to reshape policy affecting women and girls. Schools could continue to provide separate bathroom and locker room facilities and sports teams based on biological sex, not gender identity, and religious schools could continue to operate in accordance with their beliefs without having to fear agency action against them. At the same time, such legislation could leave the door open for reasonable accommodations of people who identify as transgender.

 

This is an abridged version of the original article. To read more of this fascinating analysis, see the full report at the Heritage Foundation

 

[i] News release, “U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students,” U.S. Department of Justice, May 13, 2016, https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-civil-rights (accessed February 24, 2017).

 

[ii] U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office for Civil Rights, “Dear Colleague Letter on Transgender Students,” May 13, 2016, p. 4, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf (accessed February 25, 2017).

 

[iii] Ibid

[iv] Ibid, p2

[v] Ibid, p3

[vi] Kelsey Harkness, “Minnesota Students and Parents File Lawsuit Against Obama’s Bathroom Mandate,” The Daily Signal, September 8, 2016, http://dailysignal.com/2016/09/08/minnesota-students-and-parents-file-lawsuit-against-obamas-bathroom-mandate/.

 

[vii] State of Texas et al. v. United States of America et al., United States District Court for the Northern District of Texas, Wichita Falls Division, Civil Action No. 7:16-cv-00054-O, Preliminary Injunction Order, August 21, 2016, p. 31, https://apps.npr.org/documents/document.html?id=3032393-Injunction (accessed February 24, 2017).

 

[viii] State of Texas, et al. v. United States of America, et al., United States Court of Appeals for the Fifth Circuit, No. 16-11534, Defendants-Appellants’ Notice of Withdrawal of Motion for Partial Stay Pending Appeal and Joint Motion to Cancel Oral Argument, February 10, 2017, http://apps.washingtonpost.com/g/documents/politics/motion-to-withdraw-motion-for-stay/2329/ (accessed February 24, 2017).

 

[ix] United States v. Virginia et al., 518 U.S. 151, 550 n.19 (1996), https://supreme.justia.com/cases/federal/us/518/515/case.html (accessed March 2, 2017).

 

[x] Eugene Volokh, “Prominent Feminist: Bans on Sex Discrimination ‘Emphatically’ Do Not ‘Require Unisex Bathrooms,’” The Washington Post, May 9, 2016, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/09/prominent-feminist-bans-on-sex-discrimination-emphatically-do-not-require-unisex-restrooms/?utm_term=.62b7805d1b1e (accessed March 2, 2017), and Ruth Bader Ginsburg, “The Fear of the Equal Rights Amendment,” The Washington Post, April 7, 1975, https://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/05/ginsburg.jpg (accessed March 2, 2017).

 

[xi] Tuan Anh Nguyen and Joseph Boulias, Petitioners v. Immigration and Nationalization Service, 533 U.S. 53, 18 (2001), https://www.law.cornell.edu/supct/pdf/99-2071P.ZO (accessed March 3, 2017).

 

[xii] Brief of Amicus Curiae Women’s Liberation Front and Family Policy Alliance in Support of Petitioner, Gloucester County School Board v. G.G., Supreme Court of the United States, No. 16-273, January 10, 2017, p. 6, www.scotusblog.com/wp-content/uploads/2017/01/16-273_amicus_pet_womens_liberation_front_and_family_policy_alliance.pdf (accessed March 2, 2017). Emphasis in original.

[xiii] Students and Parents for Privacy v. United States Department of Education; John B. King, Jr., United States Department of Justice; Loretta E. Lynch, and School Directors of Township High School District 211, County of Cook and State of Illinois, United States District Court, Northern District of Illinois, Case No. 1:16-cv-04945, Verified Complaint for Injunctive and Declaratory Relief, May 4, 2016, p. 55, http://www.adfmedia.org/files/SPPcomplaint.pdf (accessed March 3, 2017).

 

[xiv] Ibid, p56

[xv] Brief of Amicus Curiae Safe Spaces for Women Supporting Neither Party, Gloucester County School Board v. G.G., Supreme Court of the United States, No. 16-273, January 2017, p. 2, http://www.scotusblog.com/wp-content/uploads/2017/01/16-273-amicus-np-SSW.pdf (accessed March 3, 2017).

 

[xvi] Brief of Amicus Curiae Women’s Liberation Front and Family Policy Alliance in Support of Petitioners, p. 1.

 

[xvii] Ibid., p. 28. Emphasis in original.

 

[xviii] Ibid., p. 18. Emphasis in original.

 

[xix] Brief of Amicus Curiae Women’s Liberation Front in Support of Petitioner, Gloucester County School Board v. G.G., Supreme Court of the United States, No. 16-273, September 2016, p. 2, www.scotusblog.com/wp-content/uploads/2016/09/16-273-cert-amicus-WLF.pdf (accessed February 25, 2017).

 

[xx] Ibid p16

[xxi] Family Policy Alliance, “Ask Me First About Fairness: Tanner” YouTube video, August 2, 2016, https://www.youtube.com/watch?v=Jk_CKFkm8sI (accessed February 27, 2017) and Melody Wood, “The NBA’s Transgender Bathroom Advocacy Could Point to End of Women’s Sports,” The Daily Signal, August 1, 2016, http://dailysignal.com/2016/08/01/the-nbas-transgender-bathroom-advocacy-could-point-to-end-of-womens-sports/.

 

[xxii] Associated Press, “Transgender Boy Wins Texas Girls’ Wrestling Title, The New York Times, February 25, 2017, https://www.nytimes.com/2017/02/25/sports/transgender-boys-matches-with-girls-leave-all-unsatisfied.html?_r=0 (accessed March 3, 2017).

 

[xxiii] Kaeley Triller Haver, “Biology Isn’t Bigotry: Why Sex Matters in an Age of Gender Identity,” remarks at The Heritage Foundation, Washington, D.C., February 16, 2017, http://www.heritage.org/gender/commentary/biology-isnt-bigotry-why-sex-matters-the-age-gender-identity.