It’s not just conservatives (many with religious objections) who are attempting to block the Department of Justice, Department of Education, and the Obama Administration in general from implementing policies that mandate that transgender people be accommodated in government and school buildings. At least one feminist group is not happy and has filed a federal lawsuit to try to stop it.
There’s a lengthy history of some feminists—particularly those who classify themselves as “radical feminists—rejecting transgender inclusion and the concept that sex can be changed. There’s even a term for it, “Trans-Exclusionary Radical Feminist” (TERF). It can get pretty nasty.
One group, the Women’s Liberation Front (WoLF), has filed suit against the Justice Department and the Department of Education in New Mexico, saying the guidance document that the Department of Education has put out telling schools that they must accommodate the wishes of transgender students to access the facilities (bathrooms, locker rooms, et cetera) of their chosen gender is a violation of Title IX, which prohibits sex discrimination and allows for sex-segregated facilities in education.
The lawsuit argues that Congress has made it clear when crafting laws that references to a person’s “sex” specifically mean biological sex and not gender identity. Gender identity has historically been treated separately by lawmakers, and WoLF notes that Congress has specifically rejected attempts to add “gender identity” to civil rights laws.
The lawsuit also, interestingly enough, engages in the same panicked rhetoric from the right that transgender accommodation increases the vulnerability of women to rape and sexual assault by biological males looking for prey.
WoLF is undoubtedly accurate that there’s very little evidence that lawmakers ever intended to lump biological sex and gender identity together when crafting laws. Indeed, while this conflict is playing out, Democratic lawmakers are pushing the Equality Act, which actually would add “gender identity” and “sexual orientation” to federal civil rights laws.
But lawmakers aren’t in direct control of how laws get enforced once they’re enacted. What has happened here is a confluence of executive branch and judicial branch interpretations of the law. A Supreme Court decision years ago determined that sex discrimination on the basis of whether a person exhibits stereotypical gender traits is a violation of the federal civil rights laws.
From that precedent, there have been subsequent lawsuits that have attempted to extend that argument to transgender people—meaning that anti-transgender discrimination is based on stereotypes that men and women are supposed to dress and behave in certain ways based on their biological sex presentation. And there have been federal court rulings that have determined that either the Supreme Court precedent does apply here or—in the case of public schools—the vagueness of language in the legislation itself gives the administrative leeway to determine what the policy should be.
Right now the Supreme Court is considering whether to take up a case over whether a transgender teen can use the facilities at his Virginia school that match his expressed gender. If the court rejects the case, it will leave in place a court ruling in the administration’s favor. This doesn’t mean the WoLF lawsuit has no chance or merit, because it’s in a different court district. But that federal court would have to disagree with the 4th Circuit’s ruling in order to satisfy WoLF, and if that split happens, the Supreme Court will be called upon again to address the conflict.
In the meantime, the Obama administration is pushing forward with measures to increase transgender facility accommodation in federal government buildings and homeless shelters. Elizabeth Nolan Brown blogged about those efforts earlier this week.
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