It’s Not Just Restrooms. It’s Showers, College Roommates – and the Rule of Law

On May 13, the Department of Education issued a “Dear Colleague” letter telling any school getting federal funds (i.e., just about all schools) that they must let students use the restroom that corresponds to their gender identity and not force them to use the restroom corresponding to their biological sex.  It’s not even good enough to have separate restrooms for students whose gender identity is different from their biological sex.  The students have the right to use the restroom of the gender they identify with choose, regardless of their biological sex.  Basically, the DOE has decided that “sex” for purposes of the provision of Title IX that bans sex discrimination, means a student’s gender identity and not his or her biologic sex.

When people have objected to these rules¹ or, as North Carolina did, passed a law trying to counter DOE’s interpretation, they have been ridiculed and threatened.  They are said to be forcing people to show their birth certificate to go to restroom. Businesses are threatening to take their business elsewhere.  In any case, it’s just restrooms, people say.  What’s the big deal?  Women’s restrooms are all stalls, anyway, and there are lots of stalls in men’s rooms.  Lighten up. 

Except, of course, it’s not just restrooms.  As the DOE letter said, it’s showers and locker rooms too.  There aren’t stalls in all of them.  But once again, we hear that kids don’t care.  They can work around it.  It doesn’t matter to them.  Parents are just being hyper.  I wonder.  Is it really true that all kids don’t care – or is it that those who don’t like the idea of taking a shower with a person of a different biological sex are afraid to say so – because they would be considered “square”² or homophobic (or whatever the word is when it comes to gender identity)?

But it’s not just showers and locker rooms, either.  It’s also college dorms.  I don’t know if colleges let you choose your roommate by sex anymore; i.e., can a girl say she only wants a female roommate?  I suppose you can, but I don’t know.  In any case, under the Obama administration’s letter, it looks like you can’t effectively choose to have a female or male roommate, if you define sex as biological sex.  If a biologically male person says their gender identity is now female, then a person who asks for a female roommate could get that person, and there wouldn’t seem to be anything they could do about it.³

Which gets to a point that was raised by Judge Paul Niemeyer in his opinion dissenting from the Fourth Circuit Court of Appeal’s refusal to reconsider its decision upholding DOE’s rule that schools must let students use restrooms – and locker rooms – based on the gender identity.  Judge Niemeyer’s point was privacy.  Because the issue isn’t just sex discrimination, assuming it’s even that (see here); it’s also privacy.  And it’s not just the privacy of the person who is choosing their own gender identity.  It’s the privacy rights of the people around them, too.  Here is what Judge Niemeyer said:

“Bodily privacy is historically one of the most basic elements of human dignity and individual freedom.  And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom.  Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons?”

While the Fourth Circuit case only involved restrooms, DOE’s letter, as I said above, is not so limited.  While courts might view the rules differently in the case of showers or dorm rooms, DOE doesn’t.  It’s all the same to them.  And they control the checkbook.

But there is one more point.  Because this is not only a question of restrooms or showers or even dorms.  It’s also a question of the rule of law, what I have elsewhere called following proper procedure.

I don’t think anybody can realistically claim that, when Congress passed Title IX in 1972, they understood the word “sex,” in Title IX’s prohibition against sex discrimination, to refer a person’s gender identity, as opposed to the sex that a person is born with.  But when it came to changing the meaning of the word “sex” here, the Administration didn’t go back to Congress to get it changed.  They didn’t even follow the designated procedures set out by law for the federal bureaucracy to follow when it wants to adopt a rule or regulation.  That requires the government to publish the proposed rule or regulation.  The public gets a chance to comment on it.  The government then considers the comments and adopts the final rule.  But the Obama administration didn’t do that.  They just issued the letter and said this is the way it is.  If you don’t like it, too bad.

Some people might argue that the Administration had to go it alone.  Congress wouldn’t have passed change.  Yes, that is possible.  That’s the way our system works.  If Congress won’t change the law, then the law stays as it was.  But that’s obstructionism and discrimination, proponents of the Obama administration’s approach would argue.

Two comments.  First, this isn’t Brown v. Board of Education, no matter how much some of its proponents might think it is.  Second, even if Congress wouldn’t have changed the law, that doesn’t justify the Administration’s failure to follow the proper procedures for adopting a new rule or regulation.  I understand that doing so would have taken time and that it might have created a lot of controversy if people had had a chance to comment on the rule before it was adopted, but that is the way the system is supposed to work. 

In other words, regardless of what one thinks of the question of sex discrimination and gender identity, this is mostly just another example of the Obama administration doing what it wants without regard for proper procedure – or the rule of law.
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¹ Actually, they’re not a rule or regulation.  They’re just an interpretation.  But they certainly have the power of a rule – or even a law – behind them, as anybody who violates them will find out.

² Obviously, “square” is not the right word.  But I am so square I don’t know the right word.

³ It is interesting to contrast the Administration’s position here with its view that sexual assault on college campuses is at a crisis level.  I am not sure how you square the circle of DOE telling colleges everything they must do to protect women against sexual assault, while at the same time telling colleges they have to let students decide for themselves what their gender identity is when it comes to dorm assignments.