A pre­pos­ter­ous stand on trans­gen­der pro­tec­tion

The Washington Post Sunday - - SUNDAY OPINION - RUTH MAR­CUS ruth­mar­cus@wash­post.com

The Trump ad­min­is­tra­tion’s move to re­scind bath­room ac­cess pro­tec­tions for trans­gen­der stu­dents rests on the idea that school bath­room poli­cies are “a states’ rights is­sue,” as White House press sec­re­tary Sean Spicer has ex­plained, and that, in any event, it is “pre­pos­ter­ous on its face” that the au­thors of the fed­eral law bar­ring sex dis­crim­i­na­tion in schools imag­ined it would cover trans­gen­der stu­dents.

On the states’ rights ques­tion, the ad­min­is­tra­tion is both wrong and of­fen­sive. On the is­sue of what the au­thors of Ti­tle IX con­tem­plated in 1972, it is cor­rect but ir­rel­e­vant. The is­sue isn’t what the au­thors in­tended but what dis­crim­i­na­tion “on the ba­sis of sex” means.

For Gavin Grimm, the 17-year-old high school stu­dent whose case is now be­fore the Supreme Court, it means that he is a boy — he has an amended birth cer­tifi­cate say­ing so — who, alone among the boys at his ru­ral Vir­ginia school, is barred from us­ing the boys’ re­stroom. Tell him that’s not dis­crim­i­nat­ing on the ba­sis of sex.

The states’ rights ar­gu­ment, redo­lent of 1960s re­sis­tance to civil rights pro­tec­tions for African Amer­i­cans is, to re­peat Spicer’s lan­guage, “pre­pos­ter­ous on its face.” Of course, ed­u­ca­tion is tra­di­tion­ally a state and lo­cal is­sue. But the fed­eral gov­ern­ment pro­vides bil­lions of dol­lars ev­ery year to lo­cal schools — and at­taches a host of con­di­tions to the re­ceipt of that fund­ing. Among those con­di­tions: that they not dis­crim­i­nate on the ba­sis of sex.

It was the au­thors of Ti­tle IX — the very leg­is­la­tors whose in­ten­tions Spicer is so so­lic­i­tous of — who de­ter­mined that sex dis­crim­i­na­tion in ed­u­ca­tional in­sti­tu­tions was not a states’ rights is­sue but a mat­ter of fed­eral con­cern. If treat­ing trans­gen­der stu­dents dif­fer­ently is dis­crim­i­nat­ing on the ba­sis of sex, the Trump ad­min­is­tra­tion’s ar­gu­ment is with Ti­tle IX it­self. Why should a trans­gen­der stu­dent in Glouces­ter County, Va., where Grimm lives, be treated dif­fer­ently, and en­joy fewer pro­tec­tions, than a trans­gen­der stu­dent else­where?

So the rel­e­vant ques­tion re­mains: Are trans­gen­der stu­dents pro­tected un­der Ti­tle IX? Here, Spicer is un­doubt­edly cor­rect when he says that the au­thors of Ti­tle IX didn’t have trans­gen­der stu­dents in mind. That’s not the point, nor is it the way that the court in­ter­prets statutes. Back in 1972, no one imag­ined that sex­ual ha­rass­ment was a form of sex dis­crim­i­na­tion. The le­gal the­ory didn’t ex­ist. That has not stopped the Supreme Court from rec­og­niz­ing that sex­ual ha­rass­ment con­sti­tutes im­per­mis­si­ble dis­crim­i­na­tion, in­clud­ing un­der Ti­tle IX.

Dis­miss­ing leg­isla­tive in­tent in in­ter­pret­ing statu­tory mean­ing in fa­vor of fo­cus­ing on the lan­guage of the statute it­self is not some rogue lib­eral method of judg­ing — it’s what the late Jus­tice An­tonin Scalia ad­vo­cated. Thus Grimm’s lawyers, in their just-filed brief at the Supreme Court, cite Scalia from 1998: “Statu­tory pro­hi­bi­tions of­ten go be­yond the prin­ci­pal evil to cover rea­son­ably com­pa­ra­ble evils, and it is ul­ti­mately the pro­vi­sions of our laws rather than the prin­ci­pal con­cerns of our leg­is­la­tors by which we are gov­erned.”

That case in­volved male-on-male sex­ual ha­rass­ment in the work­place, clearly not what the au­thors of the 1964 Civil Rights Act had in mind when they made it il­le­gal to dis­crim­i­nate in em­ploy­ment on the ba­sis of sex.

Sim­i­larly, as the Jus­tice Department un­der Pres­i­dent Barack Obama ar­gued in a lower court brief in Grimm’s case, “Treat­ing a stu­dent dif­fer­ently from other stu­dents be­cause his birthas­signed sex di­verges from his gen­der iden­tity con­sti­tutes dif­fer­en­tial treat­ment on the ba­sis of sex un­der Ti­tle IX.” Forc­ing Grimm, and Grimm alone, to use a sep­a­rate, sin­gle-stall re­stroom, the Jus­tice Department said, “sin­gles him out in a way that is hu­mil­i­at­ing and stig­ma­tiz­ing.”

This, the Trump ad­min­is­tra­tion not­with­stand­ing, is not a wacky le­gal in­ter­pre­ta­tion. The ma­jor­ity of lower courts that have con­sid­ered the is­sue have agreed that dis­crim­i­nat­ing against a trans­gen­der in­di­vid­ual is sex dis­crim­i­na­tion un­der fed­eral civil rights laws and the equal pro­tec­tion clause.

The Trump ad­min­is­tra­tion is mak­ing a big fuss over the Obama ad­min­is­tra­tion’s de­ci­sion to ex­press its po­si­tion through a guid­ance let­ter to school districts rather than by is­su­ing a new reg­u­la­tion. Don’t let that dis­tract you. What really mat­ters is whether trans­gen­der stu­dents are pro­tected by the law and the Con­sti­tu­tion.

On that ques­tion, it might help to con­sider what Gavin Grimm had to tell the Glouces­ter County School Board when his le­gal odyssey be­gan three years ago: “All I want to do is be a nor­mal child and use the re­stroom in peace, and I have had no prob­lems from stu­dents to do that — only from adults.”

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