by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School
My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.
We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions and challenged Americans to rethink and reexamine their positions on issues they once thought settled. It is a story that has never before been told in its full sweep. And, best of all, it is about sex.
This past week, the U.S. Departments of Education and Justice, under the direction of President Trump, withdrew guidance to schools that receive federal funding that Title IX requires transgender students the right to use bathrooms consistent with their gender identity. In withdrawing the guidance on transgender rights, the Trump administration showed neither an understanding of the laws that protect against sex discrimination nor the key role of government in protecting students’ civil rights.
First and foremost, the Trump administration’s actions do not change the law. Title IX of the Education Amendments of 1972 – like Title VII of the Civil Rights Act of 1964 – has long protected the rights of transgender students to use restrooms and facilities consistent with their gender identity. By its language, Title IX prohibits schools that receive federal funding from discriminating “based on sex.” Over the past two decades, federal courts and agencies have recognized with near unanimity that federal laws prohibiting sex discrimination, including Title IX, prohibit discrimination against transgender persons. For example, the Supreme Court long ago recognized that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner, because this is discrimination based on sex. Likewise, federal trial and appellate courts have found that it is impossible to consider someone’s gender identity – a person’s innate identification of one’s gender – without considering his or her sex. Indeed, transgender people are defined by the fact that their gender identity does not match the biological sex given to them at birth. Therefore, courts have reasoned, discriminating against someone based on their gender identity is synonymous with sex discrimination prohibited under the law.
We should hope that the Court decides to abstain and to dismiss the case as improvidently granted. That outcome would preserve Grimm’s victory in the lower court and avoid the potentially damaging results of the justices entering this fray too soon. Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future.
Unlike the four major gay/lesbian rights victories the Court handed down between 1996 and 2015, culminating in nationwide marriage equality, this case, Gloucester County School Board v. G.G., is not about grand constitutional principles like equality and liberty. The Trump administration’s action removed the primary issue in the case, which was one of administrative law: whether lower courts should have deferred to the Obama administration’s view that Title IX, the federal statute that was originally enacted to afford women equal opportunity in education, requires schools to allow transgender students to use restrooms and locker rooms that are consistent with their gender identity rather than their biological sex.
With the administrative law question now moot, the Court could still decide the case as a matter of statutory interpretation: that is, regardless of the executive branch’s shifting policy views, how should Title IX apply to transgender students’ ability to use sex-segregated facilities? But by asking the parties for their views on how to proceed, the Court last week signaled it may at least be thinking about dismissing the case.
The Court should do so. Grimm won in the Fourth Circuit, but his lawyers from the ACLU opposed certiorari and argued that it is too soon for the Supreme Court to authoritatively settle the Title IX question one way or the other. As other courts of appeals consider similar cases, Grimm’s attorneys wrote, those courts “will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.”
There is a strong body of case law in the lower federal courts that a statute passed to combat sex discrimination can also be used to combat discrimination on the basis of gender identity. But almost all these cases involved adults in the context of employment discrimination. Grimm’s case is the first involving transgender students, schools and restrooms.
Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.
There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities.
Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.
Julie Ebenstein at the ACLU Blog reports a federal court held the system currently in place for electing school board members in Ferguson, Mo. violates the Voting Rights Act and systematically disadvantages African-Americans.
Days after issuing an injunction prohibiting the Education Department from enforcing antidiscrimination guidelines intended to protect transgender students, a lawsuit aiming to deny expanded access to medical care for transgender Americans has landed on the desk of Judge Reed O’Connor, writes The Editorial Board at The New York Times.
Fiona Ortiz and Alistair Bell explain the consequences of a 2-1 decision from a panel of the 6th U.S. Circuit Court of Appeals that upheld a law eliminating Ohio’s early voting period in an article for Reuters.
The Department of Justice submitted a brief to a class action law suit asserting the United States’ current bail system unfairly discriminates against the poor, reports Lauren C. Williams of Think Progress.