the law

The Future of Transgender Rights Now Rests With Brett Kavanaugh

Kavanaugh has already hinted at where he’ll fall on the issue. Photo: Andrew Harrer/Bloomberg via Getty Images

Few statutes in American law are as contested as Title IX of the Education Amendments of 1972, which Congress wrote to bring equal access to education without regard for a student’s gender. Its 37 words are eminently readable: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The law may have been intended as a legal equalizer for women seeking the same opportunities in education that men took for granted in decades past. But today Title IX sits at the intersection of some of our biggest culture wars, including the fights for transgender rights and about sexual violence on campus. The Trump administration, no stranger to identity politics of all kinds, has staked its position in both of these areas, but its Department of Health and Human Services appears set to take things up a notch in one of them: The New York Times obtained a memorandum in which the department appears all but determined to erase what little protections federal law affords trans Americans today.

By reading the phrase “on the basis of sex” in Title IX to only mean “on a biological basis that is clear, grounded in science, objective and administrable,” according to the DHS memo, the government will, in essence, interpret the statute as binary: as only covering male and female traits, as determined by the person’s genitals at birth. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence,” the memo reportedly reads.

This cramped interpretation of the law quickly drew the ire of trans and civil rights communities, advocates, and everyday citizens, who are in broad agreement that this craven play amounts to the erasure of trans people from federal law. But such a literalist definition of “sex” — to mean whatever a person’s birth certificate says will be the final word on whether a person deserves to be free from discrimination — also ignores both reality and how lower courts have been reading federal civil rights laws in favor of LGBTQ Americans.

At a steady clip, judges and appeals courts in different parts of the country have ruled that the word “sex” — whether in Title IX, employment law, or other corners of the federal code — does encompass sexual orientation and gender identity, despite the more traditional understanding of sex as only meaning gender, male or female. When the U.S. Court of Appeals for the Seventh Circuit considered the case of Ash Whitaker, a transgender student who was forced by his high school to use the girls’ bathroom or else a single-stall, gender-neutral restroom in the school’s main office, a three-judge panel ruled that treating him that way violated Title IX and the Constitution’s guarantee of equal protection of the laws.

U.S. Circuit Judge Ann Williams, who authored the unanimous opinion in Whitaker’s case, surveyed how numerous lower courts over the years relied on a range of interpretive tools — Supreme Court guidance, civil rights case law, and good-old statutory analysis — to conclude that Title IX protects transgender students from “sex stereotyping,” or the notion that they should be made to conform to societal expectations about gender. That, the court said, was itself a form of sex discrimination. “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth,” Williams wrote.

The case never made it to the Supreme Court because Whitaker’s school district settled the lawsuit rather than appeal it. But there are other cases in the pipeline that could prove pivotal, including that of Gavin Grimm, a former high-school student and trans activist who almost got his day in court before the justices — that is, until the Trump administration jumped into the dispute and short-circuited his case. If you want a sense of how some conservative judges view this brewing controversy over the rights of transgender students at schools, consider this line from a dissenting judge on the U.S. Court of Appeals for the Third Circuit, which recently ruled in favor of a trans-inclusive policy adopted in a Pennsylvania school district: “Nowhere does Title IX unambiguously specify liability for failure to open locker rooms and bathrooms to transgender students of the opposite sex,” the judge wrote.

That’s more or less the conclusion the Trump administration appears to be embracing: that Congress meant something very specific when it passed Title IX in 1972, and that anything more expansive than that would require a new law specifically spelling out “gender identity” or “transgender status” as a protected category. The word “sex” alone shouldn’t do it.

That was, in effect, how a federal judge in Texas came down in the waning days of the Obama administration, when he blocked on a nationwide basis the anti-discrimination provisions of the Affordable Care Act — regulations that relied on Title IX to forbid discrimination against transgender patients. In that judge’s view, “the meaning of sex in Title IX unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” (The judge, Reed O’Connor, is also handling an explosive case that could render inoperative the totality of Obamacare.)

That seems to be the only source of authority the federal government is clinging to for its latest policy pre-proposal, which has yet to be presented to the Department of Justice for legal vetting but is expected to be rolled out later this fall, according to the Times. The ACLU, for its part, has already vowed to sue if the Trump administration goes forward with it. And as with Trump’s prior assault on transgender troops, it could be only a matter of time before the government is facing legal challenges from all sides. So far, the threat of legal action has not stopped our most litigious president from yet another skirmish in the never-ending culture wars.

If Congress doesn’t move on across-the-board legislation protecting LGBTQ people — and I wouldn’t hold my breath — it will then fall to the Supreme Court to decide each of these battles piecemeal, including the burning question of whether discrimination on the basis of sex means something more than just discrimination against cisgender, straight men and women.

And it is here that the court’s newest member, Brett Kavanaugh, like Justice Anthony Kennedy before him, is more likely than not to provide the decisive vote. Except not in the way that his predecessor, a gay-rights champion, often did.

Kavanaugh has already given us some clues on where he stands. While hearing an unrelated immigration argument during his second day on the bench, which dealt with a sticky issue of statutory interpretation that could affect thousands of immigrants, Kavanaugh, still finding his footing after a bruising confirmation ritual, seemed to side with the Trump administration — wondering out loud about “what was really going through Congress’s mind” at a fixed point in a distant past. For a textualist who looks to statutory text first and foremost, that tells us a good deal about how he might approach the status of the law on transgender rights: not as a growing number of courts have over the years, but as a minority of judges and those in power want it to be.

The Future of Transgender Rights Now Rests With Kavanaugh