We Don’t Exist

That is what Jeannie Suk believes in an article  in the New Yorker, she writes in “The Transgender Bathroom Debate and the Looming Title IX Crisis” that…

In chastising North Carolina, the Justice Department explained that if non-transgender people may use bathrooms consistent with their gender identity, then denying transgender people access consistent with their gender identity constitutes discrimination on the basis of sex. Similarly, the Dear Colleague letter states that the federal government “treats a student’s gender identity as a student’s sex for the purposes of Title IX.” These interpretations of federal anti-discrimination law are new and surprising. It is not at all obvious that the “sex” in sex-discrimination law means not sex but gender, let alone “an internal sense of gender,” as the Letter says. But it is also reasonable to interpret sex-discrimination law to prohibit discrimination against transgender people. Given that single-sex bathrooms have never been seen as constituting sex discrimination, the tricky question is whether limiting them based on biological sex, rather than gender, does indeed discriminate on the basis of sex.

The author is a professor of law at Harvard and you would at least think she would mention the rationality behind the Justice Department and the Department of Education ruling, that it is based in sex stereotyping in the Price Waterhouse Supreme Court decision.

She goes on to say,

But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical. Brandeis University found a male student responsible for sexual misconduct for looking at his boyfriend’s genitals while both were using a communal school shower. The disciplined student then sued the school for denying him basic fairness in its disciplinary process, and a federal court recently refused to dismiss the suit.

Um… he wasn’t trans.

Why punish us for something we didn’t do? This incident only proves what I have been saying, open showers and locker rooms are obsolete, and everyone should have privacy when they are undressed. When I was in college at Rochester Institute of Technology in the early seventies had private shower stalls in the dorms.

A rebuttal to this article was in Slate.

There Is Only a Title IX Crisis if You Believe the Existence of Trans People Is up for Debate
By Chase Strangio
May 27, 2016

On Tuesday, Harvard Law professor Jeannie Suk published an article on the New Yorker’s website, “The Transgender Bathroom Debate and the Looming Title IX Crisis.” Suk described her misgivings about recent guidance from the Department of Education and the Department of Justice about transgender students with no shortage of hyperbole. But almost everything about her article—from its title to its legal reasoning to its alarmist conclusion—is erroneous. In fact, Suk’s article is so filled with sloppy language and legal inaccuracies, so mired in stereotyped views of trans individuals, that it makes a perfect case study in how not to write about trans discrimination.
[…]
Of the federal guidance on Title IX and transgender students, Suk writes that the government’s “interpretations of federal anti-discrimination law are new and surprising.”

That simply isn’t true. There is nothing new or surprising about the idea that discrimination against transgender people is sex discrimination. As Jillian Weiss, an employment lawyer and law professor, explained recently, “So many federal courts have specifically held that federal laws prohibiting sex discrimination also include sex discrimination against transgender people that such protections should be considered a given.” These federal courts span from Maine to California and include the federal courts of appeals for the 1st, 6th, 9th, and 11th circuits. Additionally, the U.S. Court of Appeals for the 4th Circuit also recently held that the Education Department’s interpretation of Title IX—with respect to transgender individuals and restroom use consistent with gender identity—is reasonable and valid.

In addition to this legal precedent from courts across the country going back more than 15 years, the Education Department has also been enforcing Title IX in the precise way outlined in the guidance since at least 2013.

Mr. Strangio goes on to take apart Ms. Suk article,

Forget that Suk completely misuses the term biological sex. Given that the law is clear that discrimination against transgender people is sex discrimination, it is hard to come up with a reason why restrooms should be completely exempt from that legal principle. Even if Suk or others believe that schools, employers, and others should be free to exclude transgender people from restrooms that accord with their gender identity, it’s not surprising that federal agencies might not share that view—especially given that those agencies have found that anti-trans regulations qualify as illegal sex discrimination.

This debate will only end when the Supreme Court hears a case on Titles VII and IX and I wouldn’t be surprised if in October the court decides to hear a case on it.