Bench Memos

Law & the Courts

Divided Fourth Circuit Panel Imposes Statutory Sex Change

The transgender craziness continues.

In a divided ruling, a Fourth Circuit panel ruled today, in G.G. v. Gloucester County School Board, that a Virginia school discriminated “on the basis of sex” in violation of Title IX when it barred “G.G.,” a “transgender boy”—that is, a girl who thinks she’s a boy—from using the boys’ restroom. (The school instead allowed her to use either the girls restrooms or one of the school’s single-stall restrooms, which the school created to accommodate transgender students but which were available to all students.) The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX “requires schools to provide transgender students access to restrooms congruent with their gender identity.” It ordered the district court to reconsider whether G.G. is entitled to preliminary injunctive relief against the school’s rule.

Judge Paul Niemeyer forcefully dissented. Some excerpts:

[T]he 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. Rather, it must now allow a biological male student who identifies as female to use the girls’ restrooms and locker rooms and, likewise, must allow a biological female student who identifies as male to use the boys’ restrooms and locker rooms. This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes….

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….

[A]lthough Title IX and its regulations provide generally that a school receiving federal funds may not discriminate on the basis of sex, they also specify that a school does not violate the Act by providing, on the basis of sex, separate living facilities, restrooms, locker rooms, and shower facilities.

While G.G. only challenges the definition and application of the term “sex” with respect to separate restrooms, acceptance of his argument would necessarily change the definition of “sex” for purposes of assigning separate living facilities, locker rooms, and shower facilities as well….

Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex….

The realities underpinning Title IX’s recognition of separate living facilities, restrooms, locker rooms, and shower facilities are reflected in the plain language of the statute and regulations, which is not ambiguous. The text of Title IX and its regulations allowing for separation of each facility “on the basis of sex” employs the term “sex” as was generally understood at the time of enactment.

Judge Niemeyer also explains that the majority’s misreading of Title IX and relevant regulations is “illogical and unworkable”:

If the term “sex” as used in the statute and regulations refers to both biological sex and gender identity, then, while the School Board’s policy is in compliance with respect to most students, whose biological sex aligns with their gender identity, for students whose biological sex and gender identity do not align, no restroom or locker room separation could ever be accomplished consistent with the regulation because a transgender student’s use of a boys’ or girls’ restroom or locker room could not satisfy the conjunctive criteria. Given that G.G. and the government do not challenge schools’ ability to separate restrooms and locker rooms for male and female students, surely they cannot be advocating an interpretation that places schools in an impossible position….

If the position of G.G., the government, and the majority is that the term “sex” means either biological sex or gender identity, then the School Board’s policy is in compliance because it segregates the facilities on the basis of biological sex, a satisfactory component of the disjunctive.

Therefore, when asserting that G.G. must be allowed to use the boys’ restrooms and locker rooms as consistent with his gender identity, G.G., the government, and the majority must be arguing that “sex” as used in Title IX and its regulations means only gender identity. But this construction would, in the end, mean that a school could never meaningfully provide separate restrooms and locker rooms on the basis of sex. Biological males and females whose gender identity aligned would be required to use the same restrooms and locker rooms as persons of the opposite biological sex whose gender identity did not align. With such mixed use of separate facilities, no purpose would be gained by designating a separate use “on the basis of sex,” and privacy concerns would be left unaddressed.

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