Monday, May 30, 2016

In Praise of the Insincere Trans Debate

by Michael Dorf

During the last few years of the public debate over same-sex marriage, social conservatives found themselves making arguments against SSM that some conservative intellectuals sincerely believed but that did not reflect the actual basis for much (perhaps most) of the opposition to SSM. The actual basis for much of that opposition was a view--often but not always rooted in religion--that homosexuality is immoral or even disgusting.

But in polite circles, that's not the argument that was advanced. The argument offered was that marriage as an institution evolved for the purpose of providing a stable home for children conceived accidentally through heterosexual sex and that therefore extending the institution of marriage to same-sex couples was not required by its core purpose. This argument was coherent as an argument against a constitutional right to SSM, because it responded to the objection that denying same-sex couples the right to marry is irrational and thus unconstitutional. It's not irrational, the defenders of SSM bans said, because the failure to extend the institution was rational in light of its original purpose. For a number of reasons I won't detail here, I agree that that argument was rightly rejected in the Obergefell case, but at least I understand the nature of the argument in the context of constitutional law. As a policy argument, by contrast, the marriage-was-once-all-about-accidental-procreation claim was a non sequitur. The obvious response was and is: so what? Now that marriage has evolved into something else, there's no good reason to deny it to same-sex couples.

Something similar appears to be happening now with respect to discrimination against transgender persons. I suspect that, as with homosexuality just a few years ago, there is a mismatch between the arguments being publicly advanced for requiring transgender persons to use public restrooms designated for people of their sex assigned at birth and the actual reasons motivating the policy position. For many people, the actual basis for supporting restrictive restroom policies is a view--often but not always rooted in religion--that transsexuality is immoral or even disgusting.

But in polite circles, transphobia is not being offered as the reason to resist trans access to restrooms on the basis of gender identity. The chief argument now on offer is that permitting people to use restrooms based on their gender identity would facilitate assault by cisgender men using the permission for trans women who look like men as a cover to gain access to women's restrooms, where these cisgender men can commit sexual assaults and invade privacy.

Some people make this argument sincerely. Nonetheless, it is a bad policy argument, not so much because it's illogical--one can imagine circumstances in which it might be true--but because the solution doesn't fit the supposed problem. If permitting trans women to use women's restrooms creates opportunities for cisgender predator men to pose as trans women, the "bathroom laws," by requiring transgender men to use the restroom corresponding to their sex assigned at birth, i.e., the women's room, create opportunities for cisgender men to pose as trans men to gain access to women's rooms--unless bathroom police require birth certificates for women's room access.

Moreover, there's no evidence that sexual assault in women's restrooms by cisgender men passing as (cis or trans) women happens often. To be sure, one can say it hasn't happened yet because heretofore a person appearing to be a man entering a women's restroom would have been met with suspicion, but the truth is that in a nation with millions of public restrooms, someone wishing to gain access to a restroom as a means of committing assault already can do so just by sneaking in and hiding--or by choosing a different secluded location. Sexual assault of women by cisgender men is a very serious problem, but public restroom access is a tiny part of that problem--so tiny that it is hard to believe that the freakout about trans access to gender-identity-matching restrooms is motivated by concerns about sexual assault.

What are we to make of the mismatch between actual motives and public argument? It is a sign of real progress towards equality for trans Americans. Sometimes prevarication, like hypocrisy, is a tribute that vice pays to virtue. By not voicing their real (transphobic) objection to trans restroom access, Americans who oppose such access tacitly recognize the illegitimacy of their transphobia. Just as the disappearance from polite discourse of openly homophobic rationales for laws banning SSM (and laws denying gay equality more generally) was both an effect of and a cause of (further) decline in homophobia, so the decline in openly transphobic rationales for laws and policies that disadvantage trans people is an effect and--I hope--a cause of (further) decline in transphobia.


Joe said...

The marriage arguments on a basic level didn't pass the laugh test but you and others did yeoman effort to show that was true reasoning things out too.

Trump's comment about Caitlyn Jenner using bathrooms at Trump Towers is a sign of progress too. Now, the idea is it's federalism, but we should treat transsexuals respectfully and protect their rights. What happens -- as with other civil rights -- when states don't protect them & federal action is warranted remains a big question. But, still, the decreasing size of the opposition is a good sign.


You have been involved in amicus briefs so on another matter ... curious about this:

I was not aware of some ethical rule where even amicus should not comment on the case involved after oral argument. But, perhaps, there is one.

Marty Lederman said...

Mike: I agree, of course, that the safety rationale is a red herring. In fairness, however, it's unlikely ever to be invoked in the legal proceedings, even if it does occasionally appear in public discourse (where it won't have any traction). Instead, all the action will be on a *privacy* (or modesty) rationale, albeit one that is not yet very well articulated. See, e.g., paragraphs 21-24 and 66 of the Texas complaint, which demonstrate that "privacy" has been the touchstone for the permissibility of sex-segregated facilities all along (e.g., since 1971 or so).

And when you think about it, this primary concern probably isn't really about privacy or modesty at all: To be sure, many people of one sex (however defined) do not feel comfortable being naked in the company of others who might be sexually attracted to them; but that concern does not correspond neatly with *either* anatomical sex characteristics or sexual identity. That is to say, we've crossed that bridge already: If you appear nude in a locker room or shower, odds are already very high that there are people present who might be attracted to persons with your characteristics -- and the presence of transgender individuals is not likely to increase those odds to a material degree.

What's really behind the widespread anxiety, I think (in addition to the transphobia that you identify) is the simple fact that some people feel discomfort being in the presence of others who are displaying different sex characteristics (i.e., genitalia). (That's why locker rooms and showers, not restrooms, will soon be the focus of the cases/debates.)

Whether this discomfort in being "confronted" by the sight of certain genitals is sufficient to justify the application of sex-segregated facilities rules to transgender individuals is, I think, the primary legal question raised by the litigation.

Marty Lederman said...

That is to say, I think the anxiety about being in the (visible) presence of certain genitalia is very sincere . . . but the pertinent question is not sincerity but instead whether such anxiety is a sufficient ground to justify the application of sex discrimination to transgender individuals, in light of the significant harms that the transgender individuals suffer if they are prohibited from using the facilities.

Hashim said...

Marty:  I agree with you that an interest in privacy/modesty w/r/t genitalia is what's really motivating the states' here. But since privacy/modesty w/r/t genitalia *already* justifies differential treatment on the basis of sex for *cisgender* individuals, how could it not do likewise for *transgender* individuals? You suggest that there's greater *harm* to transgender individuals, but that's not a relevant factor under the statutory/regulatory language. The question is whether the states are engaged in prohibited sex discrimination when excluding opposite-sex genitalia from a sex-specific bathroom, not the relative degree of harm particular individuals may suffer when adversely subjected to that policy.

Joe said...

"That's why locker rooms and showers, not restrooms, will soon be the focus of the cases/debates."

As with "well, I'm okay with domestic partnerships, it's marriage" rejoinders, it is somewhat reassuring now arguments are going to be smaller and smaller.

Query if some "birth certificate" test would mean that a party would have a claim if those who are undergoing (or underwent) hormonal or other procedures are allowed (or required to be) in the locker room of their birth sex but their physical appearance is that of the opposite sex now.

Michael C. Dorf said...

Thanks for all of the thoughtful comments.

On Marty's point and Hash's rejoinder: Without committing myself to this proposition, I think it's at least possible to argue that the exclusion of cisgender males from female locker rooms carries a benign social meaning but the exclusion of trans females from female locker rooms is invidious; thus the latter is not only more harmful but is invidious sex discrimination in a way that the former is not. I make this point very hesitantly because I think Hash is right that the structure of both EP doctrine and statutory anti-discrimination law treats the threshold question of whether there is discrimination as more formal, so that the exclusion of cisgender males from female locker rooms IS sex discrimination, albeit permissible sex discrimination. That's part of why I want to focus more on the policy issues than the legal ones. I will say, as a final point that might be relevant to the lawsuits, that if the concern is protecting people from seeing body parts of persons of the opposite sex (in the conventional sense), then requiring trans people to use the locker room for their sex assigned at birth will be perverse with respect to post-op trans folks.

Hashim said...

Mike, as to your final point, my understanding is that NC mitigates that perversity by allowing post-op individuals to obtain a change of sex on their birth certificate, at which point they'd use the bathroom that matches their gender identification and new biological sex. I suppose that it doesn't eliminate the perversity in that it doesn't *require* post-ops to change their legal sex and use that bathroom, but I suspect you're not going to object to that...

Marty Lederman said...

This is helpful, I think. If I'm not mistaken, Mike, Hash and I agree on three important things:

1. When the state (or recipient of federal funds) prohibits persons of one sex -- *however* the state defines "sex" (i.e., whether based on genitalia; what the hospital wrote down ("assigned") at birth; sexual identity; etc.) -- from using particular facilities, it is engaged in discrimination "on the basis of sex," which Title IX presumptively, and by its terms (cue "original public meaning"), prohibits. And this is true *without regard* to whether (i) discrimination against transgender people, as such, is discrimination "on the basis of sex" and (ii) whether a rule prohibiting access by persons of one "assigned" sex is a form of discrimination against transgender people. We can, in other words, put those questions to the side.

2. A small subset of cases of actual discrimination on the basis of sex do not violate Title IX, by virtue of the Bayh amendment and the corresponding regs. As the Texas brief quotes Bayh saying in 1972:

"These regulations would allow enforcing agencies to permit differential treatment by sex only [in]—very unusual cases where such treatment is absolutely necessary to the success of the program—such as in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved."

A critical question then, in any particular case, is whether the sex segregation as applied to transgender persons (see No. 1) is "absolutely necessary" to preserve "personal privacy."

3. Neither safety concerns nor concerns about exposing one's naked body to persons who might be sexually attracted are really what's driving the state discrimination here -- instead, it's about (Mike's words) "protecting people from seeing body parts of persons of the opposite sex (in the conventional sense)."

OK, with those things in mind, let's look at a few paradigmatic cases (see next comment):

Marty Lederman said...

OK, with those things in mind (see previous comment), let's look at a few paradigmatic cases:

a. Trans persons who have undergone transition. As Mike notes, the exclusion can't possibly be justified as applied to them, in virtually any setting.

b. Restrooms. The "privacy" or discomfort concern in question will virtually never be implicated, even as to trans persons who continue to have the genitalia of the sex that they don't identify with, since it's very rare that anyone in a restroom would see the genitalia of a trans person using the restroom. To be sure, as Hash notes, states presumably *are* permitted to exclude, e.g., cis-gender men from the women's restrooms, despite the weakness of the same state interest. What follows from this? Not much, I think. For one thing, excluding cis-gender persons from a sex-segregated restroom does not really implicate the concerns that animate Title IX -- i.e., cis-gender excluded men will not suffer much, if any, injury. Therefore, virtually no cis-gender persons will ever complain about such exclusions and, when they do, their injury will be slim to none. I don't see why (as Hash insists) this lack of harm on the excluded side should not figure in the analysis of whether this is a permissible exception to the general rule against discrimination on the basis of sex. If, say, there's a small "embarrassment" concern on the part of men who might be seen by a woman when they are at the urinal, I think we're all willing to accept the minor state interest in accommodating that concern when it comes to excluding cis-gender women from the "men's room." The only context I can envision in which a significant issue might arise is when the lines for the men's rooms are much shorter than the lines for the women's rooms, and women insist on being able to use the "men's room." If, in such a case, the state were unwilling to let the women use the men's room (with adequate warning to men who might wish not to be seen using a urinal in such a case), then it's not obvious to me that Title IX would allow the state to do so, given the paucity of the state interest.

c. Locker rooms/changing rooms/showers, as applied to nontransitioned transgender persons who would choose not to be naked in such places. The state interest won't be present, and therefore what's the excuse for excluding the transgender person?

d. Locker rooms/changing rooms/showers, as applied to nontransitioned transgender persons who *would* choose to be naked in such places. I imagine -- although I am admittedly ignorant of the empirics -- that these would be very rare cases, in which such persons would choose to expose themselves in such a setting (or where schools might continue to require communal nudity without exceptions). But if there are such rare cases, those would be the ones, if any, in which the state's interest in "protecting people from seeing body parts of persons of the opposite sex" would have to be tested. And again, in such cases, I don't see why the degree of harm to the excluded transgender persons --much more acute than any harm that Senator Bayh and his colleagues might have imagined back in 1972 - should not be weighed against the state interest in determining whether the state should be permitted to engage in presumptively impermissible sex discrimination against such persons.

Hashim said...


Actually, I disagree with your point 2, which is largely what drives my disagreement with your lettered points b-c. I don't think that the *only* reason sex-segregated bathrooms are permissible under Title IX is because of the bayh amendment and corresponding regs. If that were the case, then Title VII would still ban employers from sex-segregating bathrooms, and public accommodations couldn't sex-segregate bathrooms in the countless jurisdictions that ban sex discrimination in such accommodations without any express exception for bathrooms.

Rather, I think that sex-segregated bathrooms, while constituting *differential treatment* on the basis of sex, are not "discrimination" on the basis of sex as that word is publicly understood in the context of civil rights laws. Specifically, because sex-segregated bathrooms are accounting for *real biological differences* between men and women, they involve a situation where men and women are not *similarly situated*, and thus treating them differently is not "discrimination."

That textual rationale for why excluding cisgender individuals from opposite-sex bathrooms is not prohibited "sex discrimination" applies *equally* to (pre-op) transgender individuals, without any resort to policy balancing about the perceived degree of "harm" justifying an atextual "exception." And conversely, if that textual rationale fails, you won't be surprised to learn that I think such policy balancing to create atextual exceptions is illegitimate, and so all such forms of alleged "discrimination" are prohibited (unless expressly authorized by some specific exception or reg implementing that exception).

Finally, although not particularly relevant for this particular exchange, I also disagree with your point 1. I think the State only engages in prohibited "sex" discrimination if it discriminates on the basis of "sex" as that term is publicly understood in federal law (whatever that understanding is). If "sex" means X under federal law, and a State discriminates on "sex" defined as Y, then the State won't have discriminated "on the basis of sex" within the meaning of federal law, so long as Y is independent of X (though there may be a viable disparate-impact claim, where such claims are allowed, if Y heavily overlaps with X).

Marty Lederman said...

Hash: Seriously? You think that prohibiting men (however defined) from using a particular facility marked "Women's room" -- and vice versa -- is not "discrimination" "on the basis of sex"? Of course it is. The fact that such discrimination might be justifiable in some circumstances because of "biological differences" (although that's really not the justification offered here) wouldn't change the fact that it's discrimination on the basis of sex. Indeed, segregating persons, or treating them differently, *because of* the actual "biological differences" in their genitals is a canonical case of discriminating on the basis of sex. (It's what was happening in, e.g., Reed and VMI, etc., etc.).

Hashim said...

Marty, it's of course "discrimination" in the literal sense of "differential treatment." But I don't think it's "discrimination" in the legal sense that's normally understood for civil rights laws. There are a host of cases recognizing that "discrimination" entails treating *similarly situated* people differently. (in reed, by contrast, while the govt was of course *classifying* based on biological differences, it wasn't *justifying* the classification based on those differences; and VMI too was arguably based on that distinction, at least according to the majority). Again, your more literal understanding has an insuperable textual difficulty: the federal statutes don't have some free-floating exception for "justified" "discrimination"; they at most have specific, narrow exceptions to their "discrimination" bans (like the bfoq exception to title vii), and so your reading would invalidate sex-segregated bathrooms whenever such an express exception didn't exist, absent the invention of an atextual, policy-based "exception."

JHW said...

I think the discussion so far misses an important point: Title IX regulations as they presently stand *both* permit sex segregation in bathrooms and locker rooms, *and* permit sex discrimination claims rooted in such sex segregation, when the facilities provided for one sex are not comparable to those provided for the other. See 34 C.F.R. § 106.33 ("A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.")

This lends itself to a natural interpretation: it is not sex discrimination under Title IX to segregate "toilet, locker room, and shower facilities" on the basis of sex as long as comparable facilities are offered. Presumably, it would violate Title IX to have only men's bathrooms and not women's bathrooms. In other words, concern about level of injury is built in to the framework: to not violate Title IX when you segregate these facilities, the facilities need to be "separate but equal."

The Education Department's position is an interpretation of this regulation, that, as applied to trans people, its use of "sex" means that schools must treat them according to their gender identity. This interpretation makes good sense on this policy framework, because it extends the same underlying logic to the trans case: forcing a trans man or a trans woman to use the wrong bathroom is not just to treat them "on the basis of sex," but to treat them *unequally* on the basis of sex, to deny them the benefit everyone else gets from these facilities (the right to use these facilities comfortably, in accordance with one's gender presentation).