Is It Time to Desegregate the Sexes?

http://www.nytimes.com/2016/10/16/opinion/sunday/is-it-time-to-desegregate-the-sexes.html

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You could be forgiven for thinking that the most fiercely contested territory in America right now is the bathroom. On Monday, the Supreme Court is expected to announce whether it will hear G.G. v. Gloucester School Board, which turns on the question of whether Gavin Grimm, a 16-year-old transgender boy, may use the men’s room.

But there’s another theater for the clash of values — gender inclusiveness versus bodily privacy — raised by transgender rights, and it may be even more charged. I mean the locker room. Most restrooms have enclosed stalls. Locker rooms are open, at least in older schools built on the assumption that students of the same sex would un-self-consciously disrobe. In these spaces, bodies stand revealed to other bodies.

Imagine the following scenario. Two teenagers have to change for gym. Both wear the skinny jeans and Converse sneakers that make up the quasi-uniform of the American middle-schooler. But one was born with a girl’s body, the other with a boy’s. The second has asked the school to consider her a girl, and the school has agreed to do so. But the girl-born-a-girl (the cisgender girl, to use the preferred term) does not want to strip in front of the transgender girl or have that person strip in front of her. Meanwhile, the transgender girl does not want to be banished from the common area like some sort of freak. The standoff will end only when one retreats to a stall to change in private. Which one will it be?

According to the federal agencies charged with enforcing Title IX, the statute banning sex discrimination at publicly funded schools, the cisgender girl must cede the floor. But 23 states, a number of Christian groups and at least one radical feminist organization disagree. They have filed lawsuits to challenge that view.

The problem schools face is that they can’t prevent sex discrimination unless they can say with certainty what sex is. And in an age of gender fluidity, the word is hard to define. This year the agencies told schools to interpret “sex” as a psychological condition, an “internal sense of gender,” rather than an anatomical one. The new interpretation has some science to back it up. But the way the change was made — by fiat, without public debate — has produced a surprisingly broad backlash, from secular feminists as well as evangelical conservatives.

It’s hard even to write the words “locker room” after last Sunday’s presidential debate, when Donald J. Trump repeated the phrase “locker room talk” three times to justify his accounts of possibly felonious groping. In the popular imagination, the locker room is where mean kids bully vulnerable ones, including, of course, gender-nonconforming ones. It would seem to be the perfect place to render justice to transgender students.

On the other hand, people have a right to privacy. Courts have largely agreed that no one should have to undress unwillingly in front of a member of the opposite sex, or see that person naked. Call it prudishness, if you like, but such modesty is common. We live in a sex-segregated world. After a certain point in childhood, men and women go their separate ways for almost every activity that involves exposing the body.

The word “segregation” brings Jim Crow to mind, of course, and indeed, transgender activism has been compared to the civil-rights movement. But we have to ask whether physical modesty is tantamount to racism or has a more legitimate basis.

The new gloss on sex was announced in May by the Departments of Education and Justice in a “Dear Colleague” letter to schools that presented the change as a clarification of existing law, not a rule. The letter explained that students may change their gender identity simply by notifying the school administration, no doctor’s note required. After that, students may use the bathrooms, locker rooms, dormitories and school-trip hotel rooms that correspond to their chosen gender. A transgender girl may go to the girls’ sex-ed class, and vice versa. The guidelines largely extend to sports teams as well. Students unhappy with the situation may request private spaces. A school that doesn’t comply could lose its federal funding.

In defining sex so expansively, the agencies may have walked themselves into a legal contradiction. Title IX has also been interpreted as saying that schools must not tolerate a “hostile environment” that makes girls feel threatened and could impede their education. If the cisgender girl claims that the transgender girl is invading her privacy in a discomfiting way, that could also constitute a Title IX violation. As the Harvard Law professor Jeannie Suk Gersen wrote in The New Yorker, “The federal government is putting schools in a position where they may be sued whichever route they choose.” And so they have been.

Some schools have accommodated transgender students without incident. But others are struggling. Consider what happened in a school district in Palatine, Ill. The district was investigated by the Department of Education’s Office for Civil Rights and found to have violated a transgender girl’s rights. According to the O.C.R. report, “Student A” made the transition from boy to girl in middle school. By the time she got to high school, she had legally changed her name and begun hormone therapy. The school gave her permission to use the girl’s bathrooms and play on female sports teams. But instead of the school’s three locker rooms, it told her, she would have to use private restrooms.

This did not work out well. Student A felt she missed out on moments of team bonding. One of the bathrooms had to be unlocked for her by teachers or hall monitors, which sometimes, she said, made her late. (The school disputed this.) Most infuriating, she was reprimanded for entering an empty locker room when she needed to rent a gym uniform.

It’s not as if the school didn’t try to accommodate her, by its lights. It outfitted one of her restrooms with lockers and told her she could choose some friends to join her there. But no one wanted to move out of the main locker room, and besides, she said, this setup only highlighted her outsider status.

Why would the school impose such seemingly petty restrictions? It was a matter of protecting students’ privacy rights, the district said (though possibly also a matter of not upsetting parents). The changing areas had too few stalls and too many students, and having Student A there “would expose female students to being observed in a state of undress by a biologically male individual,” and to seeing that individual naked, the district said. Unimpressed, the O.C.R. threatened to take away $6 million in federal funding.

The district backed down, letting Student A into the locker rooms and installing private changing rooms. At that point, 51 families — they insist on anonymity — sued the district and the Departments of Education and Justice in federal court, accusing them of, among other things, creating “an intimidating and hostile environment.” The families asked the court to bar Student A from the locker rooms while the case was pending; the judges have not yet ruled on that request.

A similar lawsuit showed up in a Minnesota federal court last month. It, too, featured a high school locker room; the plaintiffs were also anonymous families. They complained that a transgender girl, “Student X,” danced to music with explicit lyrics — “Milkshake” by Kelis, for example — while twerking, grinding and at least once lifting up her skirt to show off her underwear. When one girl edged away, according to the complaint, Student X made rude comments about her. When she and other girls moved to a different locker room, Student X came in and changed next to them. Student X allegedly asked one girl her bra size and suggested they “trade body parts.” The school eventually told the complainants to use the staff bathrooms.

In both cases, the families are being represented by the Alliance Defending Freedom, a Christian legal advocacy organization with mostly evangelical clients. (In a similar case in Texas, a judge has issued a preliminary injunction against the implementation of the Dear Colleague letter anywhere in the country, although the impact of that ruling remains unclear.) The A.D.F., its lawyers told me, sees sexual identity as based strictly on biology. The suits cite the free exercise clause of the First Amendment as well as the Religious Freedom Restoration Act. According to the Minnesota lawsuit, the girls “have sincere religious or moral beliefs that they must practice modesty.”

It’s possible to read the Minnesota suit as an overwrought attack on a student who did nothing more than act like a typical girl. According to a press release from the American Civil Liberties Union, which is representing Student X, her entire volleyball team “talks, listens to music and dances in the locker room.” And if the songs she danced to had raunchy lyrics, well, that’s what teenagers listen to.

But you can’t dismiss the plaintiffs’ concerns as mere intolerance, either. Religious pluralism requires accommodation of the demure as well as the less inhibited. The United States is not France, where some 30 towns and cities have tried to ban the burkini.

And the radical feminists behind yet another lawsuit — the Women’s Liberation Front, or WoLF — are as nonreligious as it gets. WoLF worries that defining sex as a subjective feeling could strip women of their status as a class granted certain privileges and protections under Title IX.

Imagine, says David Bookbinder, an attorney working with WoLF, a school district in which “there have never been girls who have taken upper-level math class. A school could set up a class just for girls” to encourage them to do so. (Title IX allows this.) But under the O.C.R.’s edict, he continues, “men would be allowed into that class.” If “anyone who identifies as a woman qualifies legally as a woman,” Mr. Bookbinder says, then anyone can “take advantage of anything that the law reserves exclusively for women,” be they scholarships or other benefits. “How do we protect transgender people against real and pernicious discrimination,” Mr. Bookbinder asks, without taking away the reparations women fought so hard for?

It must be said that all the suits, including WoLF’s, raise the specter of the predatory boy who, under Title IX, can now claim to be a girl, enter girl-only spaces and spy on their occupants or assault them. If every schoolchild in the nation followed the O.C.R.’s guidelines, this could happen, but as advocates point out, transgender individuals have more reason to worry about violence; a study of college students by the Association of American Universities found that transgender students reported the highest rates of sexual assault. And a survery of transgender and gender non-conforming people in Washington, D.C., found that 70 percent of respondents reported “being denied access, verbally harassed, or physically assaulted in public restrooms.” Moreover, advocates say, switching from one sex to another is a long and often harrowing process that students would not undertake cavalierly.

The fear of a predator has distracted people from the enormous implications of the social transformation being proposed by the O.C.R., while making any objections sound like knee-jerk prejudice. But those implications are worth thinking about.

The characterization of sex as “internal sense of gender” is already spreading throughout federal agencies’ anti-discrimination policies. The Equal Employment Opportunity Commission, the agency responsible for preventing workplace discrimination, uses that definition, as does the Health and Human Services Department, which is also being sued over it.

If it takes hold, I envision two ways to resolve the conflict between transgender rights and privacy interests.

The first would be to stop teaching the sexes to hide their bodies from each other. Scientists mostly agree that sexual identity is multifarious, not binary; fungible, not fixed. Sex-linked chromosomes; hormones; the internalization of cultural expectations — all develop differently in each individual, yielding a gamut of sexualities. Perhaps it’s time to retire the notion of two sexes.

Colleges already have mixed dormitories; offices offer gender-neutral bathrooms. In a recent market survey of 13- to 20-year-olds, a third strongly agreed that gender doesn’t define a person as much as it used to. Give it a generation, and the divvying-up of the sexes may seem as bizarre as racial segregation does now.

Or society could move in the opposite direction, and segregate everyone from everyone else. William Dodds, a superintendent in an Ohio school district that is suing the government after being found in violation of Title IX, told the court that if the new definition of sex had been in place when its schools were being remodeled, it might well have gotten rid of communal bathrooms and changing areas and installed lockable dressing rooms. This would have been expensive. But redesigning doors, bathrooms and public transportation to grant access to the disabled after the Americans With Disabilities Act was passed also cost a lot of money. Cost shouldn’t matter when it comes to righting a great wrong.

However, the Dear Colleague letter touches on more than architecture. Schools working with transgender students must take into account complicated group dynamics. Perhaps we should trust our educators to exercise their own judgment. In another amicus brief asking the Supreme Court to hear the G.G. v. Gloucester case, a group of teachers, principals, librarians and school officials from 46 states object to having the government impose “a detailed set of rules and procedures” on their efforts to address their students’ needs.

These constraints would be particularly onerous, they argue, if the transgender student were a young child. The letter tells schools not to contact parents without a student’s consent or to request a medical diagnosis. So, for instance, a principal who suspected that a student asking to transition was experiencing other emotional upheavals as well could not refer that child to a doctor. The educators’ brief states that they don’t disagree with the intent of the letter, but that the details “are better handled by the levels of government closer to the needs of the students.”

If the Supreme Court takes up one of these cases, its decision may hinge not on the merits of transgender rights but on the way the federal government went about implementing them. A revolution of this magnitude should go through the democratic process of lawmaking, which would force legislators to entertain multiple perspectives.

In the late stages of the Obama administration, however, some federal agencies have been sidestepping Congress by quietly redefining existing law. That’s similar to what the O.C.R. did, too. That was a mistake. At the very least, the agencies should have admitted that they were introducing a new rule, not a mere clarification, which would have led to a procedure for inviting public comment.

That process could take up to a year, Jonathan H. Adler, a professor of law at Case Western Reserve University, told me. But democracy is slow. It is also inclusive, and more likely to produce the kinds of compromises that might forestall a backlash. Mr. Adler thinks that the new understanding of sexual identity will turn out to be “less of a big deal than some of the opponents think that it is,” in part because of talks he’s had with his teenage daughter. Still, changes like these “work better,” he says, “when they occur from the bottom up.”