Title IX (and Title VII) & You
Sometimes taking up the subject of some current event puts the writer in sort of an awkward position. How much of the often-complex backstory should one properly include so that the reader knows what it is you are talking about? How much do you assume they already know? That’s the situation I have with the ever-more-complex court battle between Federal officials adamantly defending trans equality, and the governments of several states equally committed to crushing our recent gains.
Here’s the basic outline. There are two relevant Federal statutes which forbid discrimination on the basis of sex: Title VII of the Civil Rights Act of 1964 is a federal law that forbids discrimination in matters of employment for most employers and Title IX f the Education Amendment of 1972 states, among other things, that educational institutions receiving government funding may not discriminate on the basis of sex. Those are both straightforward. There was a case which made it all the way to the Supreme Court in 1989 entitled Hopkins v. Price-Waterhouse which added another layer to the legal understanding of these laws. Without going into exhaustive detail, the implication of this decision for our purposes is that the Court held that discrimination based on stereotypes associated with sex amounted to discrimination based on sex itself.
After her promotion was postponed for the first year, Hopkins met with the head supervisor of her department, Thomas Beyer, who told her that to increase chances of promotion she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
This established a precedent that lower courts have relied on to expand the legal understanding of what “sex” means under the law. More recently, courts have begun to apply the same principle in regards to trans plaintiffs given that, for example, a trans woman discriminated against on the basis that her employer expected her to present herself as a man would have been discriminated against on the basis of sex-stereotyping whatever the court may think of the legitimacy of her gender identity. Even more conservative courts have ruled consistent with this philosophy, as in Glenn v. Brumby.
Consistent with these rulings (albeit, not every lower court has followed this precedent rigidly) Obama Administration officials have interpreted various departmental policies designed to implement the requirements of Title VII and Title IX (among other non-discrimination laws elsewhere in the Federal Government) to interpret “sex” as covering discrimination against trans people. For courts it comes down mainly to a contest between strict adherence to the original intent of the legislators which passed the law – a concept that is largely obsolete in the wake of many decisions which affirm that a law’s effect can be expanded to deal with situations that would have been unknown to the lawmakers at the time – or recognition that transitioning to a different presented sex is precisely a question of one’s sex, and the stereotypes associated with it and thus logically controlled by those laws.
This, however, is also something that’s been the subject of litigation. Various court cases have addressed the subject of to what extent federal agencies are entitled to interpret the Federal laws they are charged with enforcing, and the regulations implemented to enforce them. The controlling decisions here are the 1984 Chevron case (which has since been modified slightly in the Mead decision) and the Auer Decision in 1997. The former recognizes that courts should defer to agency interpretation of any ambiguity of laws under their sphere, and the latter applies the same thinking to regulations of said agencies. Neither decision is popular with the same conservatives who disapprove of trans people.
Which brings us to the current hour. In the 4th Circuit Gavin Grimm prevailed and the Administration’s interpretation of Title IX was upheld, but the case is stayed upon appeal to the Supreme Court which has yet to decide whether to accept the case. Meanwhile, black-hat villain Ken Paxton, the Attorney General of Texas, is using the courthouse of one Federal Judge in Wichita Falls, TX to accumulate anti-trans (and by extension, anti-Administration) decisions concerning Title IX. He’s also filed to suppress ACA rules requiring equality in health care for Trans people under the same logic, and the Administration has asked the judge to also weigh in on Title VI in order to consolidate his position.
The Supreme Court has not decided yet to take the Grimm case and given the vacant spot on the court, they have good reason to not do so, knowing that another case will reach them shortly. If they drop the stay on the Grimm case and decline to take it, that’s a temporary win while we try mightily to elect a president that won’t appoint a hostile judge. If they take the case, there’s some possibility the new judge will have to recuse not having heard arguments which will almost certainly result in a 4-4 tie…which would sustain the lower court decision but not firmly resolve the questions at hand.
The situation is complex but one thing is certain, Texas is insisting they become ground zero, and trans kids in Texas schools are paying the price for Paxton’s political opportunism. There’s really only one way to stop his nonsense from adversely affecting kids across the nation. Win the election. See to it the next judge appointed, and the next 2-3 after that, are not anti-trans conservatives.
Photo by Alice Linahan