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Sex Is Not Fungible

At the time the education amendment creating Title IX was enacted in 1972, there was no doubt, none whatsoever, what the word “sex” meant. The Biden Department of Education pretends otherwise, that it was redefined by Bostock, but it wasn’t. Rather, the chief of the Office of Civil Rights, Catherine Lhamon, wants it to be true so she abuses her bureaucratic authority to make it so.

But Western District of Oklahoma Judge Jodi Dishman isn’t buying.

“Physical differences between men and women … are enduring” and the “‘two sexes are not fungible….’” United States v. Virginia (1996). In fact, “sex, like race and national origin, is an immutable characteristic ….” Frontiero v. Richardson (1973) (plurality opinion). With these principles in mind, the Court tackles a question that has not yet been addressed by the Supreme Court of the United States or the United States Court of Appeals for the Tenth Circuit: whether separating the use of male and female restrooms and changing areas in public schools based on a student’s biological sex violates the Equal Protection Clause … or Title IX.

Eugene Volokh adds a parenthetical to explain what has been glossed over by the unduly passionate.

{In Bostock v. Clayton CountyGeorgia, the Supreme Court held that an employer who fires an individual for being homosexual or transgender unconstitutionally discriminates against that person because of sex under Title VII. However, the Supreme Court also made clear that its opinion did “not purport to address bathrooms, locker rooms, or anything else of the kind.”}

The issue raised in Bridge v. Oklahoma State Dep’t of Ed. is whether an Oklahoma law, S.B. 615, is constitutional or violates Title IX.

To ensure privacy and safety, each public school and public charter school that serves students in prekindergarten through twelfth grades in this state shall require every multiple occupancy restroom or changing area designated as follows:

For the exclusive use of the male sex; or
For the exclusive use of the female sex.

Each public school or public charter school in this state shall provide a reasonable accommodation to any individual who does not wish to comply with [these provisions]. A reasonable accommodation shall be access to a single occupancy restroom or changing room.

The Equal Protection question is whether the classification serves “important governmental objectives” and whether the law is “substantially related to the achievement of those objectives.” Note that classifications based on sex are subject to intermediate rather than strict scrutiny.

The text of S.B. 615 makes its objective clear: to ensure students’ privacy and safety from the opposite sex. Although Plaintiffs maintain that the Court must conduct fact finding to determine the validity of this objective, determining what is (and is not) an important governmental objective is a legal question.

Separating students based off biological sex (which both parties agree the statute does) so that they are able to use the restroom, change their clothes, and shower outside the presence of the opposite sex is an important governmental objective. “Understanding why is not difficult—school-age children ‘are still developing, both emotionally and physically.’” And the Supreme Court has recognized the need for privacy between members of each sex in intimate settings.  See United States v. Virginia (1996) (“Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements ….”). It has also recognized the State’s role in “maintaining … safety” “in a public school environment.” Bd. of Educ. v. Earls (2002).

Not long ago, this would have been so stunningly obvious as to make the necessity of a ruling laughable. Alas, it’s no longer “not long ago” and the notion that young children’s privacy and safety are at issue is not merely controversial, but a challenge to the existence of transgender people. Judge Dishman doesn’t question the existence of transgender people, or people with the physical anomaly of ambiguous genitalia, but rather holds their existence does not alter the analysis.

In addition to being an “unremarkable—and nearly universal—practice,” separating restrooms based on biological sex establishes the clearest limiting principle regarding who can go in what restroom. Adams v. Sch. Bd. (11th Cir. 2022) (en banc). If the Court adopted Plaintiffs’ position, any biological male could claim to be transgender and then be allowed to use the same restroom or changing area as girls. This is a major safety concern. The Court in no way suggests that Plaintiffs pose any safety risk to other students. It also does not cast any doubt on Plaintiffs’ claims regarding the sincerity of how they identify, nor can it on 12(b)(6) review. However, if Plaintiffs’ arguments were adopted, it would put school officials in the position of either having to conduct a subjective analysis of the sincerity of an individual’s gender identity or merely take their word for it. Not to mention that if (biological) sex-based classifications such as S.B. 615 were deemed to be equal protection violations, no law recognizing the inherent differences between male and female would pass constitutional muster. This is an untenable position.

Notably, the court concludes that if there is to be any change in the understanding of the word “sex” in Title IX, it should come from the legislature rather than a court (or a bureaucrat in a government agency, which goes without saying but I’m saying it anyway).

At the time Title IX was enacted, the ordinary public meaning of “sex” was understood to mean the biological, anatomical, and reproductive differences between male and female. It is up to Congress to change that meaning, not this Court.

Whether discrimination on the basis of sex as prohibited by Title IX should be read to include sexual orientation and identity, and if so, whether there should be special accommodations made or whether no accommodations are acceptable, has become a serious question. But the question isn’t answered because a bureaucrat with reading comprehension challenges desperately wants to redefine the word to adopt her ideology. It’s not that society isn’t in need of an answer to this pressing question, but that the answer must be legislative and reflect the will of society, not just the loudest screamers and most radical bureaucrats.

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