May 19, 2016

Source: Bigstock

Fair enough, but let’s dig a bit deeper. I asked Volokh a hypothetical question: If a fire department were under a consent decree to increase the hiring of women, and if a 6-foot-3 fully biological male who identifies as female is hired, could that hiring be counted as a female hire for the purpose of fulfilling the decree? He replied,

That question is simply whether someone who identifies as a woman would be treated as a woman for purposes of sex-based hiring preferences and the like. I take it the answer to that would likely be “€œyes”€ under the Administration’s view, precisely because they believe that self-identification is what’s important.

So, some potential good news for foes of affirmative action. Apparently, Obama has graciously provided us with a work-around for gender quotas.

Volokh continued:

To be sure, this raises the question of people calling themselves female just to get particular benefits. My guess, though, is that there may be some sincerity test (as there would be for bathroom access, at least in person), just as there is a sincerity test for claims of religious exemptions (e.g., conscientious objector draft exemptions, the clergy-penitent privilege, and more).

Look, there’s no doubt that Volokh is brighter than I am on legal issues. But he’s wrong about the “€œsincerity test”€ thing, and I let him know it: “€œDon”€™t the guidelines released today specifically reject the idea of any kind of “€˜test”€™ (as footnote #6 in the guidelines states) to “€˜somehow prove the bona fides of the individual’s gender identity?”€™”€ He more or less relented:

The guidelines do require schools to rely on the students”€™ (or parents”€™) statements, without any medical tests. But that turns out to be similar to what happens with religious exemption claims”€”the government can”€™t, for instance, demand a note from your pastor before giving you an exemption. If, however, there’s evidence that you”€™re insincere (e.g., you told your friends or coworkers “€œOh, no, I”€™m not actually transgender, I”€™m just saying I feel like a woman so I can get this job,”€ and they testify about that), then I think the government would be able to reject the claim.

So yes, a man will be taken at his word that he’s a woman, no “€œtest”€ required. And I wasn”€™t done. I asked Volokh, “€œAs far as in-person tests go, how can that possibly be accomplished without the person doing the testing (whoever that might be) running the risk of being sued for questioning a “€˜legit”€™ transgender who is still male to the naked eye? Surely the fear of a civil rights lawsuit would discourage anyone from trying to “€˜test”€™ a biological male entering a women’s bathroom.”€

His response? “€œI think that’s likely right for bathrooms.”€ So, essentially, any man can waltz into a women’s bathroom, and authorities and bystanders alike will be too cowed by the possibility of getting sued to investigate the guy’s “€œsincerity.”€

Finally, I asked Volokh if he thinks it’s likely that “€œreligious freedom”€ lawyers are going to claim that forcing teachers (as Obama’s guidelines do) to refer to a student by the pronoun of the student’s choice is a violation of the teacher’s religious freedom. “€œIf a teacher claims that their religion dictates that a biological male should be referred to as “€˜he,”€™ do you think some attorneys might try to argue that forcing such a teacher to call a male “€˜she”€™ is, in effect, forcing that teacher to act against their beliefs?”€

“€œDefinitely,”€ Volokh replied, “€œindeed.”€ (Several days after our back-and-forth, Volokh wrote a lengthy blog post further exploring the questionable legality of mandated pronouns.)

So that’s probably going to be the best line of defense against Obama’s bathroom madness. Demanding that teachers call a biologically male student “€œshe”€ and “€œher”€ is essentially ordering them to adopt a faith-based belief system (that a man can become a woman by wishing it so) that might conflict with their sincerely held religious beliefs, and that is very likely unconstitutional. If Scalia were still alive, I”€™d wager that Obama’s bathroom decree would be guaranteed to die a swift death before SCOTUS. But with things as they are now, and as they”€™ll be after November, who knows?

I”€™m happy to call my trans friend Jenna “€œshe,”€ out of respect. But the state should not be in the business of compelling anyone to accept someone else’s faith or to act against their own. Yet that’s exactly what Obama’s bathroom guidelines do. And it’s guaranteed to foment resistance, even among social libertarians like me who, by and large, have no quarrel with any of the letters in the LGBT alphabet soup.


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