May 8, 2021

IT’S NOT ALL IN YOUR HEAD, YOU KNOW:  The College of the Ozarks is suing Biden and HUD officials over the Administration’s insistence that transgender students be assigned to the dormitory they identify with, rather than the dormitory of their anatomy.

(The brief linked to here was written for the Title IX context rather than for the Fair Housing Act context, but I think the basic logic still applies.  Like Title IX, the Fair Housing Act forbids SEX discrimination, not GENDER discrimination.  At the same time, there seems to be a general agreement that the FHA allows colleges and universities to have separate dorms by sex. Once you get that far, even under the Supreme Court’s decision in Bostock v. Clayton County (in fact especially under Bostock), the College wins for the reasons outlined in the brief.

Here’s the quick version:  In Bostock, Justice Gorsuch was hyper-textual.  He essentially held that if an anatomical women who wears dresses would be hired, but an anatomical man who wears dresses won’t be hired, that’s sex discrimination under Title VII.  But the same logic doesn’t apply here:  If an anatomical woman who wears dresses can live in the women’s  dorm, but a anatomical man who wears dresses can’t live in the women’s dorm, that is indeed sex discrimination, but sex discrimination  is permitted in this context.  If it weren’t permitted, it wouldn’t just be transgender individuals who could “cross over” to the other dorm.  All men (and all women) are being discriminated against when they are not permitted to live in the opposite sex’s dorm.  Note that it doesn’t help HUD’s argument to say, “Well, transgender women (anatomical men who identify as women) really are women.  At that point, they are arguing that the college is treating two kinds of women differently.  But there is no law against discriminating between two different kinds of women; the statute forbids discrimination on the basis of sex.)

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