Bench Memos

Law & the Courts

Fourth Circuit Inflicts Sex Change on Title IX—Part 5 (Permission vs. Restriction)

See Parts 1, 2, 3, and 4

As I pointed out in my Part 4 post, the Fourth Circuit majority in G.G. v. Gloucester County School Board utterly neglected to address the fundamental question whether Title IX requires that schools allow boys who identify as female to use the girls’ restrooms, locker rooms, and showers facilities and allow girls who identify as male to use the boys’ facilities.

In an astounding botch, the Fourth Circuit majority somehow thought that its deference to the Obama administration on the meaning of a 1975 Department regulation made it unnecessary to address the meaning of Title IX. But that conclusion reflects an elementary misunderstanding of the 1975 regulation.

The 1975 regulation implementing Title IX states:

A [school that receives federal financial assistance] may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex. [Emphasis added.]

The clause that I have italicized was at issue in the Fourth Circuit case. The simple fact to note about this clause is that it is entirely permissive, not restrictive: It says what a school may do, not what it may not do. A school, in other words, might act outside what that clause allows, but it is impossible to violate that clause. Any actual restriction of the school’s conduct must come from some other legal provision.

To put the point more concretely:

The district judge and the dissenting Fourth Circuit judge, having determined that the Gloucester County School Board was “provid[ing] separate toilet, locker room, and shower facilities on the basis of sex” within the meaning of the 1975 regulation, had no need to go further: the school board’s conduct, in their judgment, fell within the scope of what the regulation allowed. (The legality of the regulation was not at issue; only its meaning was.)

But by deferring (wrongly) to the Obama administration’s position that the word “sex” in that regulation could permissibly be construed to mean gender identity, the Fourth Circuit majority should have concluded only that the school board could not claim the protection of the regulation. The Fourth Circuit majority should then have turned to the question whether Title IX barred the school board’s policy. Had it done so, as I discuss in my Part 4 post, it would have had to deliver a victory to the school board.

I’ll note that the Obama administration’s amicus brief in the case clearly supports my observation that the Fourth Circuit, in order to rule against the school board, was obligated to address whether Title IX forbade the school board’s policy. That brief’s primary argument is that the school board’s policy does violate Title IX. Its secondary argument is merely that the 1975 regulation does “not preclude” G.G.’s Title IX claim—that it “does not … give the schools the authority to decide that only those males who were assigned the male sex at birth can use the boys’ restroom.” (Emphasis added.) The brief’s secondary argument clearly recognizes that it remained G.G.’s obligation to establish that Title IX bars the school board’s policy.

In sum, the Fourth Circuit majority badly blundered in failing to realize that it had to move to the central question whether Title IX bars the school board’s policy. Its opinion is woefully incomplete.

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