A dispute about bathroom rights turned into a Pandora's box...

A dispute about bathroom rights turned into a Pandora's box of philosophical riddles about the nature of identity and the meaning of truth earlier this month. Credit: iStock

I was crunching my abs at the gym a few weeks ago when my pale male friend asked: “What if I told you I believe I am African-American?”

I grunted.

“That I am a lesbian?”


“Or I truly think I am 70 years old?”

I seized on my opening: “We all feel like that, especially here.”

His queries seem far less funny -- and far more interesting -- after the Obama administration’s sweeping action regarding HB2 and transgender rights.

A dispute about bathroom rights turned into a Pandora’s box of philosophical riddles about the nature of identity and the meaning of truth on May 13 when the Departments of Justice and Education issued a letter prohibiting “discrimination based on a student’s gender identity.”

The letter defines gender identity as “an individual’s internal sense of gender.” It also states “there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

Let’s unpack this. Medically, transgender feelings are defined as a condition, gender dysphoria, with a range of recommended treatments. These can include psychological counseling, hormone therapies or even surgery. Doctors are not sure whether transgender feelings are consistent with mental health.

There is no dispute that childhood is a confusing time. Studies show that most children with gender dysphoria grow out of it during puberty. By age 16, research suggests, those who still feel they are trapped in the wrong body may continue to do so.

Lo, the administration’s lawyers have resolved these medical debates, declaring that gender dysphoria is normal and that there is no need to refer children expressing such feelings to a doctor.

While dispensing medical advice, the letter also changes the English language, conflating sex and gender. Sex is a biological fact. Almost everyone is born with distinct physical markers that define us as male or female.

Gender is a social construct that refers to the fluid range of expected behaviors taught to boys and girls. The most obvious examples are “appropriate” clothing and make-up. At a time when many boys mousse their hair and wear not one but two earrings and when more men are staying home to care for their children, it is clear that gender markers and roles are in flux.

As a sign of its politically correct confusion -- and its legal gymnastics -- the administration’s letter describes the biological fact of sex as a societal choice: a “person’s sex,” it claims, isn’t observed but “assigned at birth.” It engages in this sleight-of-hand because the 1972 law whose authority it is using, Title IX, mentions only sex, not gender, and so it must equate the two.

Though the administration might have the best of intentions, its fusion of sex and gender raises complex questions. Race, for example, is even more of a social construct than gender. Men and women will always be biologically distinct, but race is almost entirely an invention. It wasn’t too long ago that Italians, Jews and Aryans were considered separate races.

If we, as a society, are going to define sex as a personal choice, how can we deny the claims of those who do not accept the race they were assigned at birth? Recall Rachel Dolezal, the “white” woman who lived as an African-American woman in Spokane, Wash., where she was president of the local chapter of the NAACP. When her “deception” was revealed, she was pilloried as a poseur and forced to resign her post in disgrace.

Was she mistreated?

Similarly, if one’s sex is a choice, why not one’s age? As 60 becomes the new 40, we increasingly see age as an attitude rather than a number. If I believe I am 65, what basis do you have for disagreeing with me?

That question wouldn’t matter much but for its legal implications. The administration’s letter threatens the loss of billions of dollars in federal funds if schools do not define sex as one’s “internal sense of identity.”

It might sound absurd, but, given that logic, why can’t a white person claim the benefits of affirmative action or a middle-aged man demand Medicare and Social Security?

All this is happening at a time when many complain that our culture is becoming increasingly solipsistic and when President Barack Obama is just one of the voices complaining about those who make up their own facts and their own truths.

Fair enough. But what standard are we going to use to define facts and truths? If something as clear as one’s sex is up for grabs, what isn’t?

J. Peder Zane is a columnist at the News & Observer.