The Feds Make a Mess of Sex and Gender


The never-resting Office for Civil Rights (OCR) U.S. Department of Education and the equally insomnolent Civil Rights Division of the U.S. Justice Department have just issued their latest “Dear Colleague” letter advising the stewards of the nation’s schools of their newest responsibility.

The “Dear Colleague Letter on Transgender Students” consists of five pages of text, three pages of footnotes, and a notice on “language assistance” in the event that non-English speakers are puzzled by the newly enunciated need to avoid discrimination against transgendered and gender-transitioning youth.

The number of such youth is, by all accounts, vanishingly small, but they loom large in current public policy deliberations.  Most notably, they have become hostages in the battle between the Obama administration and the state of North Carolina.  As has been widely reported and discussed, the Tar Heel State has ruled that individuals should use public restrooms corresponding to their sex at birth.

This has raised questions of post-modern epistemology.  As a matter of science, the sex of all humans is fixed at birth and is unchangeable.  That sex is present in the chromosomes of every cell in the individual’s body.  Even the most radical surgical, hormonal, and cosmetic interventions are powerless to change it.

But what is true of sex need not be true of the elastic concept of “gender,” which has been thrust on American culture as the all-purpose substitute for sex.  As it happens, my discipline, anthropology, bears some responsibility for this.  Way back in the 1930s, even before “gender” became the catchphrase, Margaret Mead was preaching the idea that cultures exhibit dramatic differences in the ways they define the proper temperaments of men and women.  Masculinity and femininity are, as we have learned to say with due solemnity, “culturally constructed.”  The men of the Tchambuli tribe in New Guinea, said Mead, are prissy and feminine by our standards; the women, all-business and managerial.

No need to elaborate.  For many decades, social science along with legions of Tchambuli-like American feminists have run with the idea that gender is “socially constructed.”  And what one Tchambuli can construct, another can deconstruct, and yet another reconstruct.  It took us a while to get all the way to the destination that people should feel free to make up their own genders, but at long last the Office for Civil Rights has set us straight.  Though that is probably not the right word.

But, as I said, we face epistemological complications.  The civil rights theory of transgender rights posits that “gender identity” is an inherent fact in the individual, which is to say that it sounds a lot more like what we used to call the individual’s sex.  If so, it is not “culturally constructed,” but somehow given in the nature of the individual.  In which case, it isn’t “gender” at all, and cannot be the basis for gender discrimination.

But let’s not quibble. Intellectual coherence isn’t what we require of federal agencies devoted to progressive social justice.  Progress is what we expect.  The “Dear Colleague” letter begins with a statement of seeming fact:

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students.

It is “parents, teachers, principals, and school superintendents” who are concerned about “civil rights protections for transgender students.” OCR is simply providing the answers that are needed in these troubled times.

It is small measure of how badly these answers are needed that I passed through 22 years of formal education and more than 25 in college and university teaching without knowingly encountering a single transgendered student.  I realize this now to my shame.  How many students did I address by cis-gendered pronouns while thoughtlessly assuming that their apparent sex matched their inner gender identities?

Well, perhaps none, but still it is possible.  It happens.  A faculty member at a large public university wrote to me this week on exactly this matter.  He incorrectly used the pronoun “he” in reference to a Japanese author whose “gender identity” he didn’t know.  A transgendered student in the class promptly filed a complaint with the university, which has summoned the faculty member to meet with the dean to ensure that such a transgression is not repeated.  The faculty member has so far not made his travail public, perhaps out of the hope of saving his university the ignominy of appearing on an OCR blacklist for its overly lenient handling of the case.

What the OCR letter provides, of course, is an astonishing annexation of new power to the federal government.  Humanity is capable of all sorts of twists and turns when it comes to sexual appetites and personal identities.  Societies attempt to impose some order on this, and Margaret Mead was not wrong in observing that the ordering ideas vary from place to place.  The social norms that prevail at 400 Maryland Avenue, SW, Washington, DC 20202, where the tribe of OCRians reside, for example, differ from the social norms in North Carolina and most other civilized places.

We need to make allowance for these differences lest we fall into a pattern of inadvertent discrimination.

By OCR’s account “Compliance with Title IX” requires that as a condition of receiving federal funds, schools “not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.”  When North Carolina boldly put itself in complete compliance with this law by insisting that “sex” means sex, it ran afoul of the OCR conception that “sex” means self-invented “gender identity.”  To that end, schools are supposed to provide transgendered students access to the “sex-segregated restrooms and locker rooms,” of their own choice.

OCR’s advice on athletics is a bit more complicated.  Schools can still differentiate among students on the basis of (real) biological sex provided they do not “rely on overly broad generalizations or stereotypes,” or act on “others’ discomfort with transgender students.”

I was briefly under the impression that “discomfort” was an index of oppression, and where discomfort exists, surely OCR regulatory assuagement must follow.  But no, the discomfort of transgendered students faced with normative expectations of sexual identity is a crisis.  The discomfort of the “cis-gendered” is just their tough luck.

I can’t unravel this mystery here, though I note that many commentators are giving it their best effort. The only thing clear to me is that OCR has reached such an apotheosis, that it now has the power to overrule nature and command our very chromosomes to obey its dictates.  We’ll see how that works out.


  • Peter Wood

    Peter Wood is president of the National Association of Scholars and author of “1620: A Critical Response to the 1619 Project.”

    View all posts

6 thoughts on “The Feds Make a Mess of Sex and Gender

  1. “Way back in the 1930s, even before “gender” became the catchphrase, Margaret Mead was preaching the idea that cultures exhibit dramatic differences in the ways they define the proper temperaments of men and women.”

    All that’s missing here is a reference to her “Coming of Age in Samoa”, and Derek Freeman’s demolition of her lies, driven by the politics of the Boasian school of anthropology to which she belonged. But I guess that would be a bit off-topic.

  2. This latest “Dear Colleague” letter from OCR is not enforceable.


    Because, as the letter states, it is “significant guidance.” It’s NOT regulation; and therefore NOT enforceable.

    Recall that OCR previously attempted to impose edicts disguised as “guidance” with a previous “Dear Colleague” letter on sexual assault (04/04/2011).

    Eventually, the non-binding nature of “guidance” was affirmed on September 23, 2015 by Amy McIntosh, Deputy Assistant Secretary Delegated Duties of Assistant Secretary, US Department of Education. She testified before Senator Lamar Alexander (R-TN) that guidance from DoE is not binding.

    So, this latest transgender edict marks the second time that OCR has…
    1. enforced Title IX based on a questionable interpretation
    2. disregarded rule-making procedure, a.k.a. the Administrative Procedure Act
    3. imposed de facto regulation upon schools by branding it “guidance” as a semantic trick.

    1. Yet is hardly matters if it’s legally enforceable or not if the OCR can get away with enforcing it via other means, and if schools comply from fear of that enforcement.

      As it stands the OCR’s “guidance” is de facto regulation, because although a school cannot be penalized for not complying with that guidance, all schools know that an OCR initiated Title IX investigation waits around the corner for those that don’t.

  3. “The only thing clear to me is that OCR has reached such an apotheosis, that it now has the power to overrule nature and command our very chromosomes to obey its dictates. We’ll see how that works out.”

    About as well as King Canute’s efforts to forbid the tide to come in. Of course, to his credit he was proving a point to his subjects regarding the limitations of human kings. I rather doubt the perps at OCR have the same intention.

  4. Popeye, clearly, was wrong….or perhaps simply confused.

    “I yam what I yam and that’s all that I yam” should really be taken to mean “I yam what I SAY I yam depending on how I FEEL I yam, whenever I so FEEL I yam that way — no matter how unreal and unmoored from reality those feelings may be. Olive would be surprised — though the OCR would embrace the new & highly fluid Popeye by whatever pronoun it would prefer.

    This is the Brave New World in which college-educated boys and girls no longer see any difference between boys and girls — each confusing each with other…. inarticulate and stumbling and obviously (fortunately) incapable of actual sexual reproduction since they believe the very idea of difference to be wrong-thinking:
    ““Freedom is the freedom to say that two plus two make four. If that is granted, all else follows….. You are a slow learner, Winston.” “How can I help it? How can I help but see what is in front of my eyes? Two and two are four.”
    “Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” ”

    The OCR is trying as hard as it can to help make us sane…

  5. I really don’t trust OCR’s enforcement of Title IX.

    Remember that OCR has somehow interpreted Title IX to include sexual assault. So, in April 2011, they issued guidance on how universities must adjudicate accusations of sexual assault – under threat of losing federal funds. Not only did OCR issue this guidance without input from Congress or the public, but OCR’S guidance also revoked due process for accused students.

    Regarding transgender bathroom use, OCR has yet again brandished “significant guidance” based on a questionable interpretation of Title IX; and with an implied threat to revoke Federal funds for noncompliance.

Leave a Reply

Your email address will not be published. Required fields are marked *