Transgender-Rights Case Moves Too Quickly
The U.S. Supreme Court agreed Friday to hear the case of a transgender teen who seeks to use the boys’ room at his high school during his senior year. Given that the appeals court had ruled in his favor, it’s unfortunate that the court took up the case. It’s too soon, in cultural terms, for the court to rule definitively on the subtle issue of transgender rights, which poses powerful equality claims against society’s deeply ingrained male-female gender binaries. Transgender rights could benefit from a longer lead time for the lower courts to explore the different aspects of the question -- and for the American people to develop a consensus.
The specific legal challenge isn’t at all simple. Title IX prohibits sex discrimination in federally funded schools, and a federal regulation demands equal facilities based on sex. Neither the law nor the regulation defines what counts as “sex.” Both have historically been read to allow separate but equal boys’ and girls’ bathrooms and locker rooms.
If “sex” is defined by biological sex, then it wouldn’t be sex discrimination to require a transitioning transgender boy to use the girls’ room. But, in keeping with the view of the transgender-rights movement, the Department of Education issued guidelines interpreting the law and the regulation. The guidelines say that schools “generally must treat transgender students consistent with their gender identity.”
The U.S. Court of Appeals for the 4th Circuit held that the Gloucester County, Virginia, high school must therefore let Gavin Grimm use the boys’ room. It relied on the legal principle that a court should defer to a federal agency’s interpretation of its own ambiguous regulation.
The court had to evaluate whether the regulation requiring equal access to facilities based on sex is ambiguous. The panel majority admitted that the language isn’t inherently vague: It says schools “may provide separate toilet, locker room, and shower facilities on the basis of sex” provided they are “comparable” to each other.
But the court said that the regulation is ambiguous because it doesn’t define “sex.” Although when the regulation was made, “sex” was largely defined biologically, identified gender is today one possible interpretation of “sex.” What is more, the court said, even a definition based on biological sex is ambiguous because it doesn’t clearly cover cases like those of biologically intersex persons or those who have already undergone sex-reassignment surgery.
The dissent, by Judge Paul Niemeyer, argued to the contrary that the biological definition in the statute and regulation are clear and cannot be overridden by the Department of Education guidance. Reflecting the cultural stakes, Niemeyer added that the holding “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”
For what it’s worth, I think that the 4th Circuit got it right, and that the Supreme Court doesn’t need to review this case: The term “sex” really is ambiguous seen in the light of contemporary debates about sex and gender. I acknowledge that it is a difficult case, legally speaking, and that my view is influenced by my moral sense that Grimm should be allowed to use a bathroom based on his own gender identification.
But there is another reason that the court shouldn’t have taken the case: It’s too soon.
It took almost 20 years for the Supreme Court to go from Romer v. Evans, its first, tentative gay rights decision, to Obergefell v. Hodges, where it announced a fundamental right to same-sex marriage. The two decades were a product of Justice Anthony Kennedy’s own evolution, to be sure, but also of his judgment that gay rights would be more secure if the court recognized those rights alongside changing public attitudes, not in advance of them.
The gradualism seems mostly to have worked. The Obergefell decision is rightly being treated as a fait accompli, even by its opponents.
Attitudes on transgender rights also need time to evolve. True, in the last couple of years, we’ve had Caitlyn Jenner’s public transition, and films and TV shows like “The Danish Girl” and “Transparent.” But these media events, important as they are to changing attitudes and increasing recognition and equality for transgender people, don’t (yet) tell a full story of cultural change.
The point isn’t that it’s fair to make transgender people wait for equality. Rather, it’s that the movement for transgender rights could be damaged by moving too fast. The justices may not be quite ready to take a stand on the issue before it has percolated through the culture and the courts.
Indeed, it’s very possible that the court’s conservatives want the case before the court now, before the values of transgender equality can spread through the public.
There are also tricky issues for the transgender movement itself to solve. Most prominent is the idea of a gender binary. Is it inherently desirable, so long as it can be crossed? Or is the binary a problem, something to be replaced with a continuum or even abandoned? This philosophical problem will inevitably arise in litigation. Let’s hope progress can be made on it before the courts have to reach judgment.
This is called “Auer” deference, and is based on a Supreme Court case, Auer v. Robbins, 519 U.S. 452 (1997). It’s a cousin of Chevron deference, which says courts must defer to agency interpretations of ambiguous statutes within their expertise.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at email@example.com
To contact the editor responsible for this story:
Stacey Shick at firstname.lastname@example.org