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On the Basis of Sex: Supreme Court should reject transgender teen’s bathroom challenge

On the Basis of Sex: Supreme Court should reject transgender teen’s bathroom challenge

Can the federal government rewrite the meaning of “sex”?

The Supreme Court has made it official that next year, for the first time in its history, it will hear a case involving a transgender person’s right to use a bathroom that corresponds with his “gender identity” while at school.

To briefly summarize, Gavin Grimm (or GG as he is referred to in court documents) is a transgender male. This means that the sex  at birth was female, but he identifies as male. According to court documents, Grimm “lives all aspects of his life as a boy” but has not had sex reassignment surgery.

Prior to the start of his sophomore year of high school, Grimm and his mother informed the Gloucester County School Board that he was a transgender boy. By all accounts the Board was exceedingly accommodating. For about seven weeks (and with his school’s permission), Grimm utilized the boys’ room without incident. Eventually, however, students took note of the fact that Grimm was a transgender boy, and some were less than comfortable with the arrangement.

In response, the school board devised a policy whereby all students would either need to 1) utilize bathrooms that correspond with their sex assigned at birth; or 2) utilize one of several “unisex” or gender-neutral bathrooms. Grimm filed this law suit to challenge that policy.

Grimm won in the lower courts, but the Supreme Court put that ruling on hold pending a decision whether to take the case.

Despite the manner in which every major news outlet will likely cast this dispute; the question the Supreme Court will consider is not whether transgender individuals have a right to use the bathroom of their choice. Rather, the question is whether a President, acting through his administrative agencies, has the authority unilaterally rewrite longstanding laws and regulations out of convenience.

Grimm’s claim rests entirely on the language of Title IX and its implementing regulations, which, from the outset, were an effort to promote gender equity in education among men and women. The Department of Education, however, is now seeking to expand Title IX as a means to promote bathroom and locker room access rights for transgender people.

To be sure, it’s not just the Department of Education seeking to facilitate this expansion of rights via Title IX. The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), at the direction of President Obama, are unilaterally deciding to reinterpret Title VII, as well. Title VII governs conduct in the workplace in the same manner Title IX governs educational institutions, and is substantially similar in its language. Accordingly, where the Supreme Court falls on the issue of the reinterpretation of Title IX and schools, Title VII and the workplace will surely follow.

Proponents of the this new direction hail the reinterpretations as a victory for transgender civil rights, while opponents have cast it as yet another in a long line of executive overreaches by President Obama and his federal agencies. It’s worth noting that opponents are not simply making a mountain out of a mole hill here. There are very legitimate concerns and far reaching implications that will follow if the executive branch is permitted to effectively rewrite a longstanding law on its own.

While I do not doubt the sincerity of those in support of the reinterpretation of Title IX and Title VII, agency insistence on focusing on the outcome, rather than the process to attain it, marks woeful short-sightedness and it keeps the United States firmly on a path toward a dangerous consolidation of power in the executive branch.

Casting aside the relative merits of the transgender rights movement, and viewing this solely through a lens of the law and policy, the DOJ and the Department of Education simply cannot put forth serious argument that their new path may be pursued within the bounds of our law.

In GG, the crux of the government’s position is that they are not adding a new law, but rather, they are giving fresh guidance on how to interpret an old one. Therefore, the government believes, normal legislative and regulatory procedure may be circumvented in favor of the vastly more expeditious path they’ve taken.

In order to cloak the clear rewriting of federal law by the executive branch with an appearance of legitimacy, the Department of Education claims to be merely “interpreting its own regulations.” By couching their new direction in these terms, current Supreme Court precedent gives federal agencies broad discretion to essentially do what they like.

Indeed, the nation’s highest court has previously said that where the agency’s interpretation of its own regulations is at issue, a court will not interfere “unless [the interpretation is] plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). Notwithstanding the fact that Auer has been roundly criticized – even by its own author – and may very well be overturned in the coming years, it remains the judicial standard under which actions like the transgender reinterpretation are reviewed.

Nevertheless, even under this incredibly deferential (and, in the opinion of many, misguided) standard, the unilateral rewriting by the Obama administration of longstanding statutory and regulatory provisions ought not to stand up to judicial scrutiny.

Importantly, Auer allows for deference to the agency only so long as it is not “inconsistent with the regulation.” The Obama Administration’s reinterpretation of the plain language of the regulations results in exactly the kind of inconsistency barred by Auer.

For example, Title IX provides, “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) [Emphasis Added]. The implementing regulations, however, expressly carve out an exception to the general prohibition on discrimination allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex…” as long as they are comparable to one another. 34 C.F.R. § 106.33 [Emphasis Added].

For over forty years, the term “on the basis of sex” has referred only to “biological sex,” i.e., the sex assigned at birth. Earlier this year, the Office of Civil Rights for the Department of Education decided a new wrinkle should be added to the regulations:

When a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity.

And with that, forty years of precedent were effectively disregarded. The question the Supreme Court must answer is this: Is this unilateral reinterpretation legal? That is to say, do these executive agencies have the authority to so dramatically reinterpret a long accepted law because they desire it to cover more situations?

The answer, in my opinion, ought to be no. Notwithstanding the extreme deference courts grant executive agencies in interpreting their own regulations, this reinterpretation fails to pass muster. Critical for our purposes, the Supreme Court has made clear it will not defer to an agency’s interpretation of its own regulation where, as here, “an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994) [Emphasis Added].

It is beyond serious contention that Title IX and its implementing regulations contemplated transgender individuals when they were first promulgated. To the contrary, it is clear that the new interpretation represents little more than a convenient litigating position to achieve a desired outcome. The merits of this outcome aside, the process utilized by the executive branch in achieving it must not be lightly acquiesced to.

I say this not because I have anything in particular against transgender people, but rather because of what the alternative means. The alternative all but removes the power to make law from the legislative branch (Congress), and further consolidates it in the executive (the President). The executive agencies responsible for the reinterpretation of “on the basis of sex” engaged in none of the formal rule making procedures, which allow for public insight and input, and maintain at least the veneer of democratic consultation in this process. They did not seek out Congress, and request they reexamine Title IX and Title VII. Instead, at the direction of the President, executive agencies are attempting to will a law into existence out of sheer convenience.

The United States is not a traditional democracy for good reason. We have elected representatives whose sole purpose in government is to make law. We have agencies that fill in the gaps in that law. We have a Bill of Rights and a Constitution that rightly remove certain issues from the passing fancies and fickle whims of bare majorities. But when we drift so far from the people in considering issues of such social importance – notwithstanding how confident we are in our moral high ground – we do so at a great disservice to the issues themselves, and we gravitate closer to a government merely of men, rather than one of laws.

Bryan Jacoutot is an attorney based in Atlanta, Georgia.

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I am sorry folks. The fact that we are even arguing this shows we are no longer a serious country or culture.

If you can write your initials in the snow, you are male.

“Can the federal government rewrite the meaning of “sex?”

Of course, they redefined tomato, why not sex?

    Milhouse in reply to rabid wombat. | October 31, 2016 at 12:09 am

    when did they redefine tomato?

      rabid wombat in reply to Milhouse. | October 31, 2016 at 8:23 am

      “Tomatoes are “vegetables,” and not “fruit,” within the meaning of the Tariff Act of March 3, 1883, c. 121.

      Page 149 U. S. 305″


        MattMusson in reply to rabid wombat. | October 31, 2016 at 8:35 am

        I do not put fruit sauce on my pizza or my french fries. So, there!

        Milhouse in reply to rabid wombat. | October 31, 2016 at 4:37 pm

        And they always have been. Where’s the redefinition?

          rabid wombat in reply to Milhouse. | October 31, 2016 at 5:03 pm

          “Botanically, a tomato is a fruit because it is a seed-bearing structure growing from the flowering part of a plant”

          “The court unanimously decided in favor of the respondent and found that the tomato should be classified under the customs regulations as a vegetable, based on the ways in which it is used, and the popular perception to this end. ”

          Milhouse in reply to Milhouse. | October 31, 2016 at 9:19 pm

          Who cares what the botanical definition is? Who ever honestly believed that the statute, which distinguished between fruit and vegetables, was referring to the botanical definitions of those terms, which do not distinguish them? Botanically all fruits are also vegetables. Nix didn’t honestly believe tomatoes were exempt from the duty, he just thought he could get away with it. The court correctly set him straight. It did not redefine anything, it pointed out what everyone involved already knew, that in English as she is spoken, which is the language in which statutes are written, tomatoes, cucumbers, squashes, beans, and peas, are all vegetables.

          rabid wombat in reply to Milhouse. | October 31, 2016 at 9:42 pm

          “The court correctly set him straight. It did not redefine anything, it pointed out what everyone involved already knew, that in English as she is spoken, which is the language in which statutes are written, tomatoes, cucumbers, squashes, beans, and peas, are all vegetables”

          Shall not be infringed?

          rabid wombat in reply to Milhouse. | October 31, 2016 at 9:48 pm

          “Who cares what the botanical definition is?”

          Or the biological definition?

          Or the definition of “tax”?

          It is all about definition

There is no “moral high ground” in executive branch agencies creating new, idiotic legal requirements on a PC-whim. This is the slipperiest of slippery slopes, and there is no good reason for starting down it.

If the federal government can twist Title IX into a requirement that schools must accommodate a student’s delusions about their gender identity, where will it end?

If a person can define their own gender according to how they feel, then why can’t people also define their bodies’ age according to how they feel? If a 20-year old decides he feels 66, then that person should be legally able to claim SS and Medicare benefits, and get the Senior Citizen discount at the grocery store. If a 10-year old decides she feels 25, then she should be legally able to drink and vote and join the Army.

And why can’t people define their bodies’ abilities or disabilities according to how they feel also? We know there are people who “identify” as blind, crippled, etc., even though they don’t objectively appear to be so. So why shouldn’t those people be allowed to legally claim disability benefits, tax deductions, ADA accommodations, etc., based on their feelings about themselves?

And what about the people who feel that they are a different race? Shouldn’t whiter-than-white Rachel Dolezal be legally entitled to Affirmative Action points and the benefit of racial preferences in school admissions, jobs, government grants, etc.? Sure, Dolezal is white, but she feels and acts black, so shouldn’t we be legally required to honor her feelings about her “real” identity?

If the federal government is intent on creating regulations or laws that allow people to define their own identities based on nothing more than their subjective feelings, there is no rational basis for drawing the line at gender.

    MattMusson in reply to Observer. | October 31, 2016 at 8:36 am

    There are plenty of precedents the SC can use. But, they don’t need no stinkin’ precedents. They can ignore anything they want to.

For years, the activists have argued that gender is not the same thing as sex. Now we have the department of education claiming they are the same under Title IX. Will the biology textbooks now be “corrected” to reflect this new “scientific fact”?

    JPL17 in reply to Sanddog. | October 31, 2016 at 9:40 am

    Exactly. Here’s a multiple choice test to all the transgender social justice warriors out there:

    1. Gender is completely different from sex.

    2. Gender is exactly the same as sex in every way.

    Pick ONE.

    (I administer a similar multiple-choice test to feminist social justice warriors, which goes like this:

    “1. Women are exactly the same as men in every way.

    “2. Women are completely different from men.

    “Pick ONE.”)

Our society is sick.

but he identifies as male
even here its an issue
SHE identifies as male.

Grimm and his mother
you mean HER mother.

Bullshit. SHE is not a transgender boy. SHE is a girl with mental problems.

I’m so tired of people claiming they’re ‘transgender’ before surgery. No you aren’t. You’re a cross dresser. Get the surgery and we’ll talk. Until then you’re playing dress up and demanding everybody else cater to your delusions.

    Ragspierre in reply to Olinser. | October 30, 2016 at 6:53 pm

    I hate to be this blunt, but “sexual reassignment” is doctor-assisted mutilation.

    You can’t make a male human a female human or visa versa.

      melissa135 in reply to Ragspierre. | October 30, 2016 at 9:48 pm

      I will be blunt with you. They absolutely CAN change a male into a female. As demonstrated with the Renee Richards case
      “according to overwhelming medical evidence this person is now female”. The evidence was not just borderline or marginal but overwhelming. One does not need to change4 chromosomes to do this since there are some born XX males with no Y specific DNA and there are some born-even fertile-XY females.

        Exiliado in reply to melissa135. | October 30, 2016 at 10:10 pm

        I will be blunt too.
        Show me a “male turned female” that can carry a pregnancy to term, or a “female turned male” than can impregnate a woman, and I promise to take your whole comment seriously.

          Milhouse in reply to Exiliado. | October 31, 2016 at 12:11 am

          Irrelevant. There are many undisputed females who can’t do the first, and undisputed males who can’t do the second.

        “They absolutely CAN change a male into a female.”

        Females have 10% less hemoglobin than males.
        Females have 10% less bone density than males.
        Females have 10% more body fat than males.

        Can you explain how they get around that?

          Milhouse in reply to Fen. | October 31, 2016 at 8:03 am

          Those are averages. There are many women who have higher counts of each of these than many men.

    Observer in reply to Olinser. | October 30, 2016 at 8:07 pm

    The surgery won’t change her gender. GG will still have XX chromosomes. She will still be biologically female in every cell of her body. Cutting off her breasts and removing her ovaries and uterus won’t turn her into a male. She will still be a female masquerading as a male, no matter how much surgery she has.

    We aren’t helping these people by catering to their delusions about themselves. Instead of paying surgeons to mutilate them, we should be encouraging them to get the psychological help they need to understand why they can’t accept themselves as nature made them.

      melissa135 in reply to Observer. | October 30, 2016 at 9:44 pm

      The chromosomes are not relevant since there are some born XX males who have no Y specific DNA and there are even some fertile born XY females. The surgery indeed does change the phenotypic or morphologic sex and hormones change the hormonal sex profile. Gender or gender identity is just another name for psychological sex. But even psychological sex IS sex and is not just a psych or social phenomenon since it can be rooted in Neurobiological science. Thus the surgery will NOT be mutilation and will change this person into a phenotypic and morphologic male.

        Observer in reply to melissa135. | October 31, 2016 at 12:15 pm

        The fact that a few people are born with chromosomal defects changes nothing. Those people are the exception, and they aren’t trying to change their biology, but simply to make reasonable accommodations to nature’s error. The people we’re talking about here are not the rare people born with chromosomal defects, but the people who simply “feel” that they were born the “wrong” gender.

        And of course the surgery changes the phenotype. That’s the whole point of the surgery: to make the male look like a female, or the female look like a male. But it doesn’t change the person’s genetic make-up. Same for the hormones. Taking them will of course change the person’s hormonal profile, at least for a while. That’s the whole point of taking the hormones in the first place. But when the person stops taking them, their hormonal profile reverts to the profile of the gender that nature assigned them. Their bodies know their true gender, even if their minds (and the minds of their PC-infected supporters) won’t admit it.

          Milhouse in reply to Observer. | October 31, 2016 at 4:36 pm

          No, Observer, the fact that there exist women with XY and men with XX proves that sex is not defined by chromosomes. Therefore if a XY man has surgery and is now identical to an XY woman, on what basis do you call her a man?

The slippery slope we ventured onto with the redefinition of “marriage” is a black diamond with rocks, trees, and moguls.

No chance we’ll come out of this intact.

    MichaelGC in reply to Ragspierre. | October 30, 2016 at 9:57 pm

    Yes, Obergefell sent us into uncharted waters, and this will push us deeper still. I can see the radical left bloc (Kagan, Sotomayor, Ginsberg, Breyer) rubber-stamping for the plaintiff without a thought, like they did with gay marriage.

    Tony Kennedy? Flip a coin. This case seems tailor-made for his “Sweet Mysteries” jurisprudence.

    So we are all waiting to see whether or not the Supreme Court will give us permission to have separate facilities for men and women. We must wait upon the Supreme Court to tell us what constitutes and defines a man or a woman; whether it it one’s reproductive anatomy and DNA or one’s “gender identity.”

    We must wait upon the Supreme Court to decide for us what is the nature of reality and the human condition, because we simple common folk are not qualified to do that, any more than we were qualified to decide on marriage.

      JPL17 in reply to MichaelGC. | October 31, 2016 at 9:45 am

      I shudder to think of the opportunities this “transgender” case gives Justice Kennedy to expand his newly-discovered, cancerous constitutional right to “human dignity”.

    Milwaukee in reply to Ragspierre. | October 30, 2016 at 10:48 pm

    “…redefinition of “marriage”…”

    Liberal-socialist-marxist want to transform our world by redefining words. Sort of disorienting and unsettling. Previously, I worked as a high school teacher. An important liberal Educational Establishment push is to redefine the meaning of grades. In the elementary grades this has been easier, with “Proficient”, and “Advanced Proficient” being two of the new grades. Those grades are about mastery of the material instead of comparisons between students in a group. I’m not sure why they feel the need to do this. They do this with a ferocity which is eerily religious.

    An “A” grade has roughly meant this student in that class with that teacher and textbook was above average on the assessed material. A “C” is average, a “D” means learned enough to take the next course, and an “F” means didn’t learn much and not prepared for the next course. (My principal at the time was not impressed with my answer. How did he get to be a principal and not know what grades meant?) Students with A’s from low performing schools do as well on standardized tests as students with C’s and D’s from high performing schools. This is how the cookie crumbles.

The implications of the principle the government is advocating go far beyond sex or anything related to it. For instance, it’s against the law to operate an aircraft without a license; if the court accepts the government’s position, then one day it might redefine bicycles as “aircraft”, thus bringing them under federal licensing. Or, for that matter, air conditioners (hey, they’ve even got “air” in the name), laser pointers, or anything else they might want to license.

The logic outlined above will have no effect on the liberals on the court. They will vote for whatever radical leftist PC madness is the cause de jour. and since we have a 4 – 4 court (although Kennedy may vote perv as he did on marriage), this abomination will become the law of the gland. At which time there will be a building boom in religious private schools…..NEA hardest hit!

God, I miss Scalia!