Supreme Incoherence: Transgender Ideology and the End of the Law

In neither case is the demand for cross-sex restroom access related to the justification or function of that sex-specific facility.

A summary of the obvious: Bathrooms are not specified in terms of mental states; there’s no reason for respective bathroom access to depend on one’s mental state; and there’s no viable way to regulate admission to separate bathrooms on the grounds of mental states. Why, then, do transgenderism policy proponents counter-intuitively announce their constituents’ deep need for cross-sex facility access, rather than merely campaign against the error of binary sex-separation in the first place? Because their demands are not about those facilities, as such.

 

In The Trouble with Principle, Stanley Fish recites an observation that John Milton included in his Areopagitica: “No law, Milton points out, can permit activity that constitutes an assault on it, no law, that is, that ‘intends not to unlaw itself.’” Even more self-cancelling is for a law to permit an interpretation of its text that abolishes the very concepts on which its edict depends. In such case, both the law and its interpretation stall in mutual nullification.

Two questions, then. One: Does the federal law prohibiting “sex discrimination” forbid us to countenance the category of “sex”—and thus of “sex discrimination”? Two: Can the rule of law survive a yes answer to question one?

In order to do away with the legal decisiveness of the binary of male and female bodies, legal advocates for transgender ideology now brandish the federal ban on sex discrimination in Title IX—which itself depends on the legal decisiveness of the binary of male and female bodies. But banishing the sex binary concurrently banishes the (dependent) prohibition of sex discrimination. And that, in turn, leaves the transgender legal theory empty-handed, having eviscerated the structure on which its own claims rely.

While requiring equal educational opportunity for both sexes, federal law in Title IX and its implementing regulations authorizes schools to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” Does the federal authorization for sex-separation facilities also forbid schools to keep those facilities sex-separated? That odd question (among others) is presented in the now-famous case of G.G. v. Gloucester County. (The Supreme Court was to hear oral arguments in that case this week, but due to the Trump administration’s reversal of the Obama administration’s guidance on the law at issue, the Court remanded the case to the lower court for renewed consideration.) The Gloucester case presents an ironic dispute over whether the federal law enacted to provide equal educational opportunities to students of the female sex requires that schools do away with the category of sex from which the law’s solicitude for female students originates, and on which its effectuation depends.

The plaintiff in the case (“G.G.”) is Gavin Grimm, a female student at Gloucester High School in Virginia. She wishes to use the restrooms reserved for the male student population, as she identifies as a transgender male. The Fourth Circuit Court of Appeals last year ruled in her favor, offering that “the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

Among the demerits in that assertion is the court’s conflating categories that are distinct and incompatible. Indeed, their conflict is the basis of Gavin’s claim in her lawsuit. She is, to her chagrin, of the female sex. (“I was born in the wrong sex,” she testified.) Her female body is precisely what she wishes to erase from legal visibility, to be replaced by the mental state that she announces: a male “gender identity.” If Gavin, who has a female body, has a male gender identity, it is not clear what “male” means in this context, or why her male gender identity should determine which bathroom she uses. What is clear is that “male” with reference to gender identity does not have (in her case, certainly) the same meaning as “male” when the school district employs it to demarcate admittance to restrooms.

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