Transgender laws threaten to erase women
A lawsuit known as Gavin Grimm v. Gloucester County School Board is working its way through the courts in the United States. Gavin is a transgender high school student from a town in rural Virginia who has been pushing for three years to use male bathrooms. The case has become a cause célèbre for the transgender movement. Gavin was even given a spot on the op-ed pages of the New York Times to express his point of view.
One of the best amicus briefs about the issue comes from a surprising partnership: a group of radical feminists and a pro-family Christian organization. The Women’s Liberation Front and the Family Policy Alliance together argue that the transgender ideology will hurt women. Below are some excerpts.
Pro-family Christians and radical feminists may not agree about much, but they agree that redefining “sex” to mean “gender identity” is a truly fundamental shift in American law and society. It also strips women of their privacy, threatens their physical safety, undercuts the means by which women can achieve educational equality, and ultimately works to erase women’s very existence. It not only revokes the very rights and protections Congress enacted specifically to secure women’s access to education, but does so in order to extend Title IX to cover men claiming to be women ...
Three harmful consequences follow from redefining “sex” in Title IX to mean “gender identity”.
First, women will lose their physical privacy and face an increased risk of sexual assault. This redefinition allows any man to justify his presence in any women- only space simply by uttering the magic words, “I identify as a woman”, subject only to the condition that male students “notif[y] the school administration that the student will assert a gender identity that differs from previous representations or records.”
But male faculty, administrators, other employees, and any other men who walk onto the campus of a Title IX institution do not have to notify anyone about anything; they can just show up in any women’s restroom, locker room, shower, or dormitory whenever they want.
But because men have been forcing themselves on women for thousands of years with virtual impunity, a new pretext for stripping women of their privacy and making them more vulnerable to everything from groping to rape may actually be the least remarkable of these consequences.
More pernicious is the loss of one of the primary means by which women are trying to overcome the centuries – millennia – of being denied education: scholarships.
If any man becomes eligible for the millions of dollars in female-only scholarships at Title IX institutions merely by “identifying” as a woman, then many will do just that. For women, this means the loss of an indispensable tool in their struggle to achieve equality in education.
The third and most serious consequence of legally redefining “woman” as anyone who claims to be one, is that “woman” – as humankind has always recognized “woman” – will cease to exist. Women’s immutable existence will be legally altered to include any man who wishes to be deemed a woman, for whatever reason, at whatever time and for however long it suits him.
Even at times and in places where women are the property of men (as many still are around the globe) and have few rights beyond those granted by their owners they, like all women, still possess their own experience and legal status derived from their biological reality. But if “sex” means nothing more than self-determined “gender identity”, even those women will continue to share a status no longer available to “the people formerly known as women” in the United States.
If, as a matter of law, anyone can be a woman, then no one is a woman ...
Privacy and sexual violence
Redefining “sex” to mean “gender identity” means that the hundreds of colleges and universities that have women-only dormitories must now allow any man who “identifies” as a woman to live in them: According to DOJ [the Department of Justice] and DOE [the Department of Education], “a school must allow transgender students access to housing consistent with their gender identity.”
Thus women who believed that they would have the personal privacy of living only with other women will be surprised to discover that men will be their roommates and will be joining them in the showers. And those women will only discover this after they move in, not before, because even if the school is aware that a student is a man identifying as a woman, the school must keep such notification confidential. Schools may disclose “directory information” such as “a student’s name, address, telephone number, date and place of birth”, etc., but “[s]chool officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy.”
It is truly mind-boggling that informing women as to which men might have the “right” to share a bedroom with them is an “invasion of privacy”, but it is not an invasion of privacy to invite those men into women’s bedrooms in the first place.
Colleges have already begun implementing this portion of May 13 Guidance. For example, Florida Gulf Coast University announced that, as a result of the Guidance, it will open its women-only dorms to any man who “identifies” as female. This includes the Women in Science, Technology, Engineering and Mathematics Living and Learning Community (WiSTEM), designed to support “first-year college women pursuing challenging degrees in STEM disciplines”.
Schools have long provided women-only dormitories and related facilities for female students. For example, Cornell College in Mount Vernon, Iowa, has a proud history of serving women, being the first college west of the Mississippi to grant women the same rights and privileges as men, and the first, in 1858, to award a degree to a woman. At Cornell College, Bowman-Carter Hall has traditionally been a residence hall for women only. But if “sex” is redefined to mean “gender identity”, then any man will be legally entitled to live in Bowman-Carter Hall so long as he “identifies” as a woman.
The same is true at another Cornell – Cornell University – where Balch Hall has long been a women-only residence.8 But that will end if “sex” is redefined to mean “gender identity”, and the women of Balch Hall will be joined by any man – or group of men – who utters the magic words.
Privacy is one thing; violence is another. The violence DOE and DOJ have done to the statute is reflected in the violence that will result from their actions. Without a second thought – and without any public notice or opportunity to comment – the federal government has mandated that almost every school in the US must now allow men to invade women’s privacy and threaten their physical safety in the places heretofore reserved exclusively for them.
That any man can justify his presence in any women’s restroom, locker room, or shower by saying, “I identify as a woman” will not escape the notice of those who already harass, assault, and rape tens of thousands of women every day.
The first report of the White House Task Force to Protect Students from Sexual Assault begins with the sentence, “One in five women is sexually assaulted in college.” More recent data has shown that the problem is even worse than that – more than 10% of college women experienced sexual assault in a single academic year, with almost half of those women reporting more than one such assault during that time. Moreover, a majority of those assaults were committed by “students, professors, or other employees of the school”; in other words, the very people that the federal government is now emboldening in those activities.
It is surreal that the Departments of Education and Justice, both of which profess concern about the safety of women in schools and on campus, would facilitate sexual predation in those very places. Allowing any man to claim he has a right guaranteed by federal law to be where he should not be seriously undermines the laws designed to protect women in these places ...
Giving predators the convenient pretext of a right to be precisely where women are at their most vulnerable also renders similar statutes in other states simply inapplicable to these types of crimes. In many states, the relevant statute criminalizes only covert or “surreptitious” observation. ...
But it is not illegal for a man to walk into a women’s locker room in the District of Columbia or Virginia and openly ogle the women there, because there is nothing “secret or surreptitious about” that action – just the opposite. Redefining “sex” to mean “gender identity” effectively decriminalizes this predatory sexual activity and gives a get-out-of-jail free card to any predator who smiles and says, “But I identify as a woman”.
Preferences addressing historical and systemic discrimination
After centuries of second-class treatment in all matters educational, the very preferences used to remedy that history and encourage women’s education – most importantly, scholarships for women – will now be reduced by the demands of any men who “identify” as women. Every women’s scholarship at Title IX schools that have been created by the school itself, or by the federal or state government must, as a matter of federal law, now be open to any such men.
Virtually all schools have such endowed scholarships. Princeton, for example, has the Peter A. Cahn Memorial Scholarship, the first scholarship for female students at Princeton, and the Gary T. Capen Family Scholarship for International Women. For graduate students, Cornell University’s School of Veterinary Medicine has the Sheila D. Grummick Scholarship for female students, and the Richard M. Sweezey Memorial Scholarship, whose awards are made to students “with financial need and preferably to a minority female student from the Bronx to help pay for supplies and books.”
Given the struggles women have gone through to become lawyers, it is not surprising that law schools also have established such scholarships. Yale Law School, for example, has the Joan Keyes Scott Memorial scholarship for women students, the Lillian Goldman Perpetual Scholarship Fund, “for students in financial need who have a demonstrated interest in women’s rights, with a preference for women students”, and the Elizabeth Warke Brem Memorial Fund, “for scholarships at Yale Law School with a preference for Hispanic women students”....
Even the federal government offers such scholarships, e.g., the National Oceanic and Atmospheric Administration’s Dr. Nancy Foster Scholarship Program, which “provides support for master’s and doctoral studies in oceanography, marine biology, maritime archaeology and all other science, engineering, social science and resource management disciplines involving ocean and coastal areas particularly by women and members of minority groups.”
Twenty years ago, this Court eloquently described how women’s physiology was used as an excuse to deny them education:
Dr. Edward H. Clarke of Harvard Medical School, whose influential book, Sex in Education, went through 17 editions, was perhaps the most well-known speaker from the medical community opposing higher education for women. He maintained that the physiological effects of hard study and academic competition with boys would interfere with the development of girls' reproductive organs....
It is ironic that while women’s bodies were once used as an excuse to deny them education, now women’s educational opportunities will be curtailed by saying that there is actually no such thing as a “female” body: Women, after all, are simply anyone who “identifies” as such.
Congress enacted Title IX to ensure women’s equal access to educational opportunity; it is difficult to imagine a more damaging interpretation than reading it to allow men to help themselves to one of the primary means of assuring that access.
Other remedial statutes
If “sex” is ambiguous in Title IX, then there is no logical reason why “sex” or “female” or “woman” or “girl” is any less ambiguous when used in any other law designed to remedy centuries of discrimination against women.
Nearly 30 years ago, Congress enacted the Women’s Business Ownership Act of 1988 to “remove, insofar as possible, the discriminatory barriers that are encountered by women in accessing capital and other factors of production” and creating the National Women’s Business Council, of which at least four members would be “women”. In 1992, noting that “women face significant barriers to their full and effective participation in apprenticeable occupations and nontraditional occupations”, Congress enacted the Women in Apprenticeship and Nontraditional Occupations Act, in order to “expand the employment and self-sufficiency options of women” in these areas via grants, technical assistance and studies.
In 2000, Congress amended the Small Business Act to create the Procurement Program for Women-Owned Small Business Concerns in order to create preferences for women-owned (and “economically disadvantaged” women-owned) small businesses in federal contracting. In 2014, Congress again amended the Small Business Act) to include authority to award sole-source contracts under this program.
Neither in 1988, nor 1992, nor 2000, nor 2014, nor in any other remedial statute did Congress define “woman”, so presumably these programs will soon become equally available to any man who “identifies” as one.
Just as with Title IX scholarships, allowing men to take advantage of remedial programs and benefits Congress intended for women works to perpetuate the very problems these programs were intended to fix.
While amici are concerned that men will say that they are women for the purpose of helping themselves to benefits Congress intended for actual women, redefining “sex” to mean “gender identity” in Title IX would also affect all other federal statutes which explicitly incorporate Title IX’s definition of “sex discrimination”. ...
Finally, amici also note that men might take advantage of the “sex” means “gender identity” definition to avoid particular obligations imposed on them, e.g., selective service: “It shall be the duty of every male citizen of the United States, and every other male person residing in the United States ... to present himself for and submit to registration.” In the event of war, no doubt demographers will be astonished by the sudden surge in the female population.
It was not that long ago that this Court noted approvingly that married women had a limited independent legal existence apart from their husbands:
The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary and worked in many instances for her protection. There has been, it is true, much relaxation of it but in its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband.
Women may have escaped the bonds of such doctrines and achieved their independent legal existence, but that status is now threatened by redefining “sex” to mean “gender identity”.
Worse than enabling men to help themselves to women’s bodies and women’s remedial or protective programs, that redefinition poses a truly existential threat: An administrative ukase decreeing that there really is no such thing as a woman. When the law requires that any man who wishes (for whatever reason) to be treated as a woman is a woman, then “woman” (and “female”) lose all meaning. With the stroke of a pen, women’s existence – shaped since time immemorial by their unique and immutable biology – has been eliminated by Orwellian fiat. Women, as they have been known forever, will simply be no more.