Does Title IX Protect Trans People?
with Shep Melnick
It’s common to say that the Civil Rights Movement ended legal segregation in the US. But of course, that’s not exactly true. Sex segregation is not only legal in some very specific areas in American life, it’s more or less accepted as necessary. Most of us believe that there are good reasons to accept sex segregation in bathrooms, locker rooms, sports, prisons, and a few other areas. I don’t think it’s controversial to observe that if, say, the NBA and the WNBA were forced to merge, very, very few women would be able to play professional basketball. That would be a great loss, not only for the hundreds of women who play the sport at the most elite level and the millions of people who enjoy watching them play it, but also for the principle of equality. Perhaps ironically, a tiny amount of legal segregation ensures that, when everyone is abiding by the law, women are able to participate equally and safely in society.
Title IX was designed with that purpose in mind. But it was not designed to accommodate shifting models of gender and trans identity. Nor were the landmark Supreme Court decisions and pieces of legislation of the Civil Rights Era necessarily designed to address all possible modes of discrimination and identity categories. It was a largely successful response to the unique historical and social situation of African Americans in the US.
One of the consequences of that success has been that the African American experience is often (perhaps too often) used as a symbol of a general striving for equality rather than a specific historical experience. As I say in this clip, paraphrasing the sociologist John Skrentny, if your group wants to make a claim regarding its civil rights, the best way to do it is to draw an analogy with the black experience. But as my guest this week, the political scientist Shep Melnick, points out, civil rights laws designed to address the specific rights of specific groups of people don’t travel well. They tend not to make sense when applied to a different group. Moreover, one could argue that attempts to make those laws apply outside their narrow domains could constitute a kind of (yes, I’m saying it) cultural appropriation.
Would it make one a transphobe to say that the issues of women’s equality, of racial equality, and of disabled people’s equality cannot be neatly applied to the situation of trans people, just as they cannot be neatly applied to each other? Would it make one a racial chauvinist to say that the struggle for African Americans’ rights was just that, a struggle for African Americans’ rights? If your answer to both those question is “yes,” you’re going to have a tough time winning people over to your side of the argument.
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GLENN LOURY: Okay, now here's an argument that I'm not actually making, because it's absolutely unacceptable. But I can hear it being made by some of the people I grew up with back on the South Side of Chicago. And it's, to a certain degree, inspired (although my uncle doesn't know that) by John David Skrentny's book, The Minority Rights Revolution. I know you know the book and I know you know the guy. He's a political sociologist at UCSD. The argument is, how do I know it's a civil rights question? Answer: If I can make a credible analogy to the situation of blacks about whatever the group is, it's got a pretty good chance of clearing the hurdle to be a civil rights issue.
So here's the argument that you can make. I'm black. You're appropriating the suffering of my ancestors and the unique characteristic of my struggle for equal citizenship in this country on behalf of postmodern, hyper-modern, unchristian stuff—I'm sorry, I'm just making the argument my uncle's gonna make—like transgender stuff. And I object.
SHEP MELNICK: I have a fair amount of sympathy for that position.
Which I'm not actually taking. But I can imagine my uncle taking it. No, I got some sympathy for it, too, I'll confess that.
The position of African Americans in this country is unique. And unique means “only one.” Now, there are other forms of discrimination. But I guess what I would say, and here I agree with John Skrentny, that one of the ways which public policy was made was basically to say we should get the same protections as African Americans, and therefore all the remedies should be the same.
But the remedies shouldn't necessarily be the same, because the situations are different. Racial discrimination and sex discrimination are different. That's why we allow separate but equal for sports for one but not for the other. Racial harassment is based on prejudice and hatred and all kinds of other ugly things. Sexual harassment against women might be a result of that. But it might also be the result of attraction and desire for intimacy that is unwanted by the woman in question.
So those are different situations. The same thing happened on the basis of disability. The laws initially—especially Section 504—say you can't discriminate. But discrimination meant that you have to take into account our particular situations and mold our accommodations to our particular situation, not treating us equally in the same regard as race.
So in all of these ways in which we use the language of discrimination, we have overlooked key differences among the nature of the problem. And that's where I think the piggybacking on the the laws that were passed to aid African Americans produced some undesirable consequences.
Title IX was created to undo sex stereotypes. And a sex stereotype is assuming that a transgender person should fit our mold of male or female. So if you, if you discriminate on the basis of transgender status, you're discriminating on the basis of an illegal sex stereotype. If that seems a little odd, it's very odd.
Has this been vetted at the Supreme Court?
It has not come to the Supreme Court. I would just point out, the Supreme Court has never issued a decision on sports and Title IX. It's all lower court. The lower courts have generally been quite supportive of a broad reading of Title IX to protect transgender students. I think if this comes to the Supreme Court, the outcome will be quite different.
I'll just say, parenthetically, the Supreme Court has dealt with the issue of discrimination against transgender people in employment, the Bostock decision. The Supreme Court said that discrimination against transgender people in employment is prohibited by Title VII of the Civil Rights Act. I actually, I think that's a completely reasonable decision. Because Title VII, basically said, “Can you do this job?” And if you wear a dress or don't wear a dress, wear makeup, don't wear makeup, that doesn't determine how well you can do the job. The issue in Title IX tends to be different because it involves, “Where do you put people when you have sex segregation that is legal?” And that's a different issue.
Like bathrooms.
Bathrooms, locker rooms, and, above all, sports.
Prisons. But that's not higher education.
Right. But when you have sex segregation that is legal and appropriate, then the transgender issue becomes a lot more complicated.
The real question is how an issue that effects 1 out of 10,000 has taken hold of the socio/political conversation.
This is a very sound critique of intersectional feminism. Extend it to lesbian separatists and the political positions Malcom X, and you have woke.