The United States Fourth Circuit Court has made a landmark ruling almost certain to be challenged up to the Supreme Court.
The case involves a biological girl identified as G.G. who identifies as a male. The court’s majority ruling explains it as “G.G.’s birth-assigned sex, or so-called ‘biological sex,’ is female, but G.G.’s gender identity is male.” Yes, the court put scare quotes around the words biological sex as if that isn’t a clinical term.
The court ruled that Title IX, part of the 1972 Education amendments created to prohibit discrimination on the basis of sex – also extends to the same protections for gender identity. That ruling allows a transgender student’s lawsuit to proceed for violation of that student’s civil rights.
In a sharply critical dissent Judge Paule Niemeyer writes: “the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex.”
Niemeyer explains that the ruling goes against history, the clear language of Title IX, and common sense:
This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. … schools would no longer be able to protect physiological privacy as between students of the opposite biological sex.
This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.
In the dissent, Niemeyer plainly explains that students have privacy rights not to be intermixed with student of the other biological sex in locker rooms:
Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind.
Most disturbing is that the student chose to file this lawsuit despite overwhelming efforts by the district to accommodate.
When the school implemented a policy that bathrooms and locker rooms are to be used based on the biological gender, it took the additional step of creating single stall bathrooms specifically to allow transgender students to avoid any awkwardness.
Judge Andre Davis, writing for the majority, says this isn’t enough and that GG “experiences daily psychological harm that puts him at risk for long-term psychological harm, and his avoidance of the restroom as a result of the Board’s policy puts him at risk for developing a urinary tract infection as he has repeatedly in the past.”
Davis argues that for G.G. to use single-occupancy restrooms “is tantamount to humiliation and a continuing mark of difference.”
Neimeyer’s concise dissent highlights the majorities reliance not on the actual text of Title IX, but on a 2015 letter from the Obama administration’s Office of Civil Rights: “The recent Office for Civil Rights letter, moreover, which is not law but which is the only authority on which the majority relies, states more than the majority acknowledges.”
Here, he refers to the letters specific language to “offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”
The school district created a policy that effectively balanced the privacy needs of students while giving transgender students an option for privacy if they have not completed their transition to the other sex.
Moreover, as Niemeyer explains, the policy complies with the law, as written: “when the school board assigned restrooms and locker rooms on the basis of biological sex, it was clearly complying precisely with the unambiguous language of Title IX and its regulations.”