There Is Only a Title IX Crisis if You Believe the Existence of Trans People Is up for Debate

The sign may be temporary, but this is settled law.

Sara D. Davis

On Tuesday, Harvard Law professor Jeannie Suk published an article on the New Yorker’s website, “The Transgender Bathroom Debate and the Looming Title IX Crisis.” Suk described her misgivings about recent guidance from the Department of Education and the Department of Justice about transgender students with no shortage of hyperbole. But almost everything about her article—from its title to its legal reasoning to its alarmist conclusion—is erroneous. In fact, Suk’s article is so filled with sloppy language and legal inaccuracies, so mired in stereotyped views of trans individuals, that it makes a perfect case study in how not to write about trans discrimination.

Start with Suk’s premise. In reality, there is no crisis looming over Title IX. There is, of course, a longstanding crisis for transgender people of violence, discrimination, and harassment, which you certainly wouldn’t know about from reading Suk’s piece. But despite what she suggests about the meaning and application of federal prohibitions on sex discrimination, the recent guidance is nothing more than a straightforward application of longstanding, established law.

Of the federal guidance on Title IX and transgender students, Suk writes that the government’s “interpretations of federal anti-discrimination law are new and surprising.”

That simply isn’t true. There is nothing new or surprising about the idea that discrimination against transgender people is sex discrimination. As Jillian Weiss, an employment lawyer and law professor, explained recently, “So many federal courts have specifically held that federal laws prohibiting sex discrimination also include sex discrimination against transgender people that such protections should be considered a given.” These federal courts span from Maine to California and include the federal courts of appeals for the 1st, 6th, 9th, and 11th circuits. Additionally, the U.S. Court of Appeals for the 4th Circuit also recently held that the Education Department’s interpretation of Title IX—with respect to transgender individuals and restroom use consistent with gender identity—is reasonable and valid.

In addition to this legal precedent from courts across the country going back more than 15 years, the Education Department has also been enforcing Title IX in the precise way outlined in the guidance since at least 2013.

But Suk mentions none of this.

She tries to account for her framing of the issue by saying that, in her view, a different question here is whether “limiting [restrooms] based on biological sex, rather than gender, does indeed discriminate on the basis of sex.”

Forget that Suk completely misuses the term biological sex. Given that the law is clear that discrimination against transgender people is sex discrimination, it is hard to come up with a reason why restrooms should be completely exempt from that legal principle. Even if Suk or others believe that schools, employers, and others should be free to exclude transgender people from restrooms that accord with their gender identity, it’s not surprising that federal agencies might not share that view—especially given that those agencies have found that anti-trans regulations qualify as illegal sex discrimination.

And finally, if restrooms are exempt, is that not just a way to say that a transgender woman is not a woman, because she does not have the right type of body to use space limited to women? And if so, is that not precisely the type of sex-stereotyping that federal discrimination laws prohibit? Gillian Thomas, an expert on Title VII’s prohibition on sex discrimination in employment, thinks so. After all, we don’t exempt restrooms from laws prohibiting discrimination based on race, age, or disability, to name just a few examples.

But why does it matter? Isn’t this just some wonky legal debate for the courts to figure out?

It isn’t—and not only because the courts have already figured it out. It matters also because the insistence on casting this longstanding position as “new” and “surprising” is spurring a horrible backlash, including a lawsuit filed this week by lawmakers from 11 states challenging this guidance. And while debates play out over what sex means, real transgender students are suffering. Real transgender people and those who love them have to listen to lawmakers charged with representing them explain that there is a national education crisis over the prospect of nontransgender students having to share space with their transgender peers.

And it is for this reason, and out of concern for transgender people, that I was particularly distressed by how much Suk reinforced a widespread misunderstanding about who transgender people are.

To comply with the “surprising” guidance, Suk posits, schools are left with two options: Either allow transgender students access to restrooms and other single-sex facilities in accordance with gender (as Title IX requires) or abolish single-sex facilities altogether. Those two options are radically different. Yet, Suk assesses them both on the same terms—and in the process reveals that she, like the lawmakers who have since filed lawsuits challenging the guidance, believes them to be effectively the same. In her view, transgender girls “are biologically male.” That is an offensive and inaccurate notion, the kind of error one would hope not to find on the website of the New Yorker.

But transgender girls are not “biologically male.” To reiterate the idea that a transgender girl is, really, “male,” as Suk does repeatedly in her piece, is to reinforce the very anti-transgender rhetoric that has been carefully crafted by opponents of transgender people. Suk and others might believe that a person’s genitals define their “biological” sex, but that does not make it so. Continuing to put forth that narrative without challenging it as an ideological position, as opposed to a fact, is extremely harmful.

Though Suk does not bother to complicate what she means by “biological sex” by juxtaposing gender as belief with sex as biology, she plays right into the hands of those invested in undermining the authenticity of trans identity. This idea that our bodies and our “biology” could somehow betray who we “really are” drives not only the anti-trans conversation playing out in state legislatures and courts, but also the tragic violence targeting trans people—particularly trans women of color, whose existence is all too often seen not only as inauthentic but also criminal.

Suk suggests, in closing, that it is “fear of attacks and harassment carried out by males—not fear of transgender people” that motivates the current crop of anti-trans backlash. But her explanation of that fear relies on rhetoric that fundamentally erases the existence of trans people.

I have a few problems with this.

First, Suk’s formulation of the concern that sexual-assault survivors may feel discomfort at “being in rest rooms with people with male sex organs, whatever their gender” completely erases both trans men and trans women. By talking about “males—not … transgender people,” Suk seems to deny the existence of males who are transgender (i.e., transgender men). And then she simultaneously refers to trans women as “people with male sex organs”—both reducing them to their sex organs and referring to them as male.

Second, if people are traumatized by seeing genitals that trigger discomfort because of prior sexual assaults, it is not at all clear why that concern is specific to transgender people’s presence in restrooms. People with penises are often assaulted by other people with penises, and the same is true for people with vaginas being assaulted by other people with vaginas. That’s the unfortunate truth, regardless of where transgender people pee.

Finally, Suk, like so many people reporting on the myth of the bathroom predator, raises the specter of sexual violence in the restroom, yet fails to note that experience has shown this fear is entirely unwarranted and that extending legal protections for transgender people has never increased the risk of violence to anyone.

Perhaps Suk is correct that bigotry isn’t the sole motivation behind the recent spate of laws driving trans people out of public life. But laws need not be driven by pure bigotry in order to be morally and legally wrong. As Justice Anthony Kennedy wrote about unconstitutional discrimination: “[It] rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

There may be an instinct to guard against trans people because we confuse you or because we are different. But the truth is, we exist. More careful reflection is needed on the implications of this dialogue and what it means to be at the center of a national conversation about whether you exist.