TRANSGENDER LOGIC PUZZLES:  Last week, I linked to the very brief Title IX comment that Pete Kirsanow and I submitted to the U.S. Department of Education.  It outlines why we think the Biden Administration does not have the power to require federally funded schools to assign anatomical boys who identify as girls to the girls’ bathrooms, locker rooms and showers (and vice versa).  We believe schools have discretion here.

Since then, I’ve been asked what would happen (under the analysis in our comment) if Congress were to amend Title IX to prohibit discrimination on the basis of both sex and gender identity, but make no other change to the law.

Answer:  It would make it illegal to treat anatomical boys who identify as girls differently from other boys.  Similarly, it would make it illegal to treat anatomical girls who identify as boys differently from other girls.  For bathrooms, locker rooms, and showers, that means it would be illegal to separate transgender students from students with the same sex who are not transgender.  That’s the opposite of what transgender activists want.

Title IX has a section that specifically empowers schools to maintain “separate living facilities for the different sexes.”  That’s what authorizes schools to have separate bathrooms by sex in the first place.  Congress could amend that section to include gender identity as well.  That would allow schools the discretion to separate students of the same sex (but different genders) if that’s what it wants to do.  But it still wouldn’t give the activists what they want–a requirement that schools assign transgender students to the facilities they identify with.

If Congress wants to require schools to separate students by gender rather than sex for bathrooms, locker rooms and showers, it should have to repeal the part of Title IX that specifically empowers schools, in their discretion, to maintain “separate living facilities for the different sexes.”

Or at least that how our analysis comes out.