Three recent legal cases—two appellate court rulings and one settlement—are broadening Title IX beyond its language and jurisprudence to grant transgenders entitlements without regard for the concerns of the people their demands affect.
Just a few days ago the Seventh Circuit Court of Appeals unanimously ruled that Ash Whitaker, a transgender high school student, could use private facilities for boys despite being female. Whitaker’s Wisconsin public school, while providing Whitaker individual-use facilities, asked for a preliminary injunction keeping group bathrooms designated by biological sex while Whitaker’s case moved forward, arguing that the presence of a biological female violated male students’ privacy. Whitaker insisted this arrangement prompted suicidal thoughts, and judges agreed that was grounds enough to grant her demands.
Another case involving a transgender person has even more far-reaching implications for employers and insurance companies. This case also relied on reinterpreting Title IX, a federal law that prohibits discrimination based on sex. Rachel Dovel, born male, “came out” as transgender last year and decided to transition from male to female. When Dovel’s employer, the Public Library of Cincinnati and Hamilton County, refused to cover sex-change surgery under their Anthem insurance plan, Dovel sued.
While Dovel paid for the surgery, the two parties just reached a settlement, wherein they agreed to pay for future sex-change surgeries. Anthem added it to their base plan. The taxpayers who largely fund libraries are left with the tab of higher insurance premiums to cover elective plastic surgery and the question of how to deal with this sliver of the population that is loud, entitled, and pushy.
How Sex Discrimination Became Gender Experimentation
For those who require a refresher, the Title IX of the Education Amendments Act of 1972 is a federal law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” At the time and ever since, the word “sex” has been understood and used to mean biological sex—that is, the fact that someone is genetically male or female.
Yet under the Obama administration, the U.S. Department of Education “issued guidelines asserting that transgender students are protected from gender discrimination under Title IX.” The reasoning includes that sex is not just a biological reality delineated by things such as chromosomes and entirely different proportions of hormones such as testosterone, but includes non-objective social stereotypes about male or female behavior. In other words, this interpretation takes the objective word “sex” and smashes the subjective word “gender” into it.
In the Whitaker case, Judge Ann Claire Williams (a Clinton appointee) accepted this unprecedented write-in to the law, writing in her decision, “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”
Similar legal gymnastics occurred in Dovel’s lawsuit, filed last year, in which Dovel alleged the library’s refusal to cover an elective self-mutilation surgery comprised “Violating Title VII of the 1964 Civil Rights Act, which says employers shall not discriminate because of an individual’s sex. Violating the 14th Amendment, which guarantees equal protection.”
Courts Not Treating Sex-Related Distress Equally
An altogether different ruling regarding a transgender case in Michigan illustrates courts’ bias in favor of transgender demands despite the lack of laws granting preferential treatment for those who exhibit gender dysphoria. Two years ago, a woman named Yvette Cormier working out at Planet Fitness objected to the “policies at her local Planet Fitness after she encountered a transgender woman in the locker room.” Eventually, her complaints caused Planet Fitness to revoke her membership. Cormier sued, and a Michigan Appeals Court just ruled she had no valid claims to sue.
Cormier claimed allowing a person of the opposite sex into her locker room was a violation of of Michigan’s civil rights law, her right to privacy, and that this caused her emotional distress. The court disagreed: “Transgender rights and policies are polarizing issues and each individual may have a feeling on the issue and on what locker room such individuals should be using. Regardless of whether an average member of the community may find the policy outrageous, the fact is that plaintiff did not suffer severe emotional distress as a matter of law.”
Note that Cormier’s distress was considered not actionable, but Whitaker’s was. If we’re following the logic of the Whitaker and Dovel court decisions, how is Cormier’s distress because of her female sex and desire for privacy for the body parts that exhibit this sex not a violation of Title IX? Are only suicidal thoughts adequate proof of emotional distress? Or perhaps Cormier should have just requested plastic surgery instead of working out, in order for Title IX to apply to her case.
