Why is the U.S. Department of Justice—which one assumes deals with evidence all the time—so adamantly opposed to evidence regarding transgendered status?

In the “Dear Colleague” letter that was jointly issued by the U.S. Department of Education and the U.S. Department of Justice, it is clearly stated that asking for evidence of transgendered status is not permitted:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.

The objection made by many people opposed to establishing a right of the transgendered to use the bathroom or shower of their choice is not so much about the occasional transgendered person using a facility. It is that by making someone’s gender choice unquestionable, you are actually saying that anyone, at any time, can use the facilities of the other gender, and if challenged, can simply claim to be transgendered. So any middle aged man who wants to shower with the girls’ soccer team at the local community college will now have a federal right to do so. And if anyone asks him to leave, they will be violating his legal rights. (Some have argued that social norms will keep people in line in bathrooms; but it seems hardly worth commenting on the uselessness of social norms when the underlying policy is meant to destroy social norms.)

This objection that “transgendered” really means “everyone” could be easily addressed. If a school, or a health club, or Target (if an alternate universe existed) could ask for proof of transgendered status, then it would not be the case that everyone could use facilities of the other gender at will. To use a different bathroom or shower or locker room, someone would at least be required to obtain a note from a medical professional confirming their transgendered status. And even though it may not be difficult to obtain such a note, the medical professional would at least need to give some sort of official stamp of approval. That may not be a perfect system, but it would certainly discourage most people with a mere prurient interest.

An evidence-based system would remove a large part of the objection from the public. The question is, why is an evidence-based system so objectionable?

In a way, the North Carolina bathroom law is an evidence-based system. The North Carolina law does not ban transgendered people from bathrooms. It only says that people must use the bathroom of the gender that is on their birth certificate. But this does not mean the gender that was assigned at birth. Someone in North Carolina can have their birth certificate changed to another gender. In North Carolina, that process is somewhat more difficult than in other states, in that North Carolina appears to require proof of sex-reassignment surgery before changing the gender. (In contrast, neighboring Virginia only requires proof that gender has been changed by “a medical procedure” which does not apparently require surgery.)

The Justice Department’s recent lawsuit against the state of North Carolina notes disapprovingly the difficulty of changing ones birth certificate in that state. However, there is nothing in the DOJ filing to indicate that it would consider the North Carolina law constitutional if changing a birth certificate were easier. Judging by the Dear Colleague letter, one must assume that even if North Carolina merely required a note from a gender dysphoria treatment practitioner, that would be too great a burden to be borne.

Having read many articles by those denouncing the North Carolina bill, I have personally never encountered a suggestion that the situation could be remedied by making it easier to change a birth certificate.

Which puts us back at the question of why it is so important that proof can never be required.

Specifically dealing with schools, documentation is required for many things. In order to enroll in a public school, the parent will first need to provide documentation that they live in the school district. They will then need to provide documentation of the age of the child. They will likely have to provide certification of vaccinations. If parents want a child excused from gym class, they will probably need to provide a letter from a doctor.

So why is it unacceptable that a boy submit a letter from a doctor to change to the girls’ gym class?

Some might suggest that it would be a burden for a parent to seek out and pay for a medical evaluation or treatment for a transgendered child. But it’s hard to imagine that a parent would have a boy or a girl who wants to change genders and not at least run the situation by some type of medical practitioner. And if the child wants to go all the way and become more physically like the other gender, that will require significant medical treatments. At the very least, one supposes that a new wardrobe is in order. In such a situation, where some pretty drastic changes are occurring, it hardly seems onerous to secure a note from a doctor or clinician of some sort. Even in the deepest, darkest recesses of fly-over country, it’s hard to believe a parent couldn’t find someone to help.

Perhaps a recent article in New York Magazine can shed some light on the rejection of evidence.

On December 15 of last year, Dr. Kenneth Zucker, who had been head of the Child Youth and Family Gender Identity Clinic (GIC) in Toronto, was summarily fired. Dr. Zucker was no denier of transgenderedness. He was anything but that. According to Jesse Singal, author of the New York Magazine article about what happened,

Zucker had built up quite a CV during his time leading the clinic: In addition to being one of the most frequently cited names in the research literature on gender dysphoria and gender-identity development, and the editor of the prestigious journal Archives of Sexual Behavior, he took a leading role helping devise diagnostic and treatment guidelines for gender dysphoric and transgender individuals. He headed the group which developed the DSM-5’s criteria for its “gender dysphoria” entry, for example, and also helped write the most recent “standards of care” guidelines for the World Professional Association for Transgender Health—one of the bibles for clinicians who treat transgender and gender-dysphoric patients.

But Dr. Zucker and his clinic had one little problem. He did not assume that everyone who came into his clinic was truly transgendered just because they said they were. Clinicians at GIC would perform in-depth evaluations to try to determine what was really going on with the child. They looked at the home situation and families “were sometimes encouraged to tweak family tendencies and habits that could be contributing to their child’s distress, which ruffled some feathers.” Clinicians at the GIC believed that a child might be led into the idea of being transgendered through positive reinforcement. It’s not hard to see how that could happen. A boy dresses like a girl, perhaps at first just to get more attention. But if the child’s parents immediately start telling him he really is a girl, then he could start to think of himself as transgendered even without any underlying cause.

The approach of Dr. Zucker and GIC was in contrast to other clinics that would affirm the transgendered status of anyone who was insistent on their new gender. If a child said over a period of time that he was transgendered, then he was transgendered. No attempt would be made to determine whether the new gender identity was something inherent in the child or perhaps merely due to environment. This approach is called gender affirming.

The problem with the gender affirming approach is that research shows that a large majority of young gender dysphoria children actually revert to their original birth gender. (This is much more likely before puberty than for older children.) As Singal writes, “In defending their approach, Zucker and his colleagues point frequently to the small but consistent body of research suggesting that something like three-quarters of children with gender dysphoria will ‘desist’—they’ll eventually come to feel comfortable with their natal gender…” Because of the fact that so many young children revert to their birth gender, GIC clinicians would often facilitate movement in that direction, rather than toward the new gender. And that seems to be what got Dr. Zucker in trouble.

Which brings us back to the Justice Department. If we say, like the gender affirming clinics, that the state of being transgendered primarily depends on asserting a transgendered status rather than an underlying objective condition, then there is really no need for additional evidence. The assertion itself is dispositive evidence.

Clearly, if a school required evidence from a clinician, it would be rejecting the idea that the assertion of the new gender is sufficient to establish the new gender. And in our current political climate, that is simply not acceptable.

Once an assertion has been made, transgender activists would say that it’s not the place of parents or schools to question the assertion. Rather, it’s the job of parents and schools—and really all of society—to affirm the decision and help the student make the transition to the new gender. Asking for evidence isn’t affirming.

By inserting itself into the bathroom wars, the Justice Department is not only taking a position on the correct interpretation of Title IX. It is also inserting itself into a debate about how a claim of gender dysphoria should be viewed, and is throwing its considerable weight against the idea that a boy who says he’s a girl, or a girl who think she’s a boy, should ever be encouraged to consider the alternative.

(Photo credit: Reuters)