Sunday, October 29, 2017

Title IX and the Straw Man

Erin and I both talked to a New York Times reporter last week about whether and how California's new legislation allowing for a gender neutral designation on state IDs would intersect with Title IX regulations. (More on that below.)

My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.

Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of  Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like  "both sexes" and "one sex ...[and] the other sex,"  realistically the law would not be read to cover a third gender category. Finally, even if  Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small.  I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.

The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.

* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks  around the phrase nonbinary gender to get his point across.