A Washington Post article reports that four Northern Virginia school boards have filed an amicus brief in support of Gavin Grimm’s continuing lawsuit against the Gloucester County School Board for its policy of assigning restroom facilities on the basis of sex. Readers might recall that in a remarkably confused decision three years ago that the Supreme Court ultimately voided, a Fourth Circuit panel ruled that Grimm, a female who identifies as male, had a right under Title IX to use the boys’ restrooms at her high school. Grimm has graduated from high school and moved to California, but has a claim for nominal damages that the district court has concluded keeps the case alive.
The article and the school boards’ amicus brief strike me as remarkable in several respects:
1. I suppose that I should be inured to it by now, but the mainstream media’s embrace of the deceptions of trans-speak continues to amaze me. The article states in its first sentence that the case “involv[es] a teenager embroiled in a years-long legal fight over his attempt to use the boys’ restroom at his high school.” A reader with even moderate skill in the English language might wonder why a high school would try to prevent a boy who identifies as female from using a boy’s restroom. While the article does identify Grimm as “a transgender teen,” nowhere does it clearly state that Grimm is a biological female. “Democracy dies in darkness,” indeed.
2. The claim that a policy of assigning restroom facilities on the basis of sex somehow discriminates on the basis of gender identity has things backwards. A policy can be said to discriminate on the basis of a trait when it makes that trait relevant to how a person is treated, and it doesn’t discriminate on the basis of that trait when it treats the trait as irrelevant. So, for example, a person discriminates on the basis of race when he factors a job applicant’s race into his hiring decision, and he doesn’t discriminate on the basis of race when he disregards the applicant’s race in making his hiring decision. Likewise, a person discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision—when, for example, he refuses to hire a woman because she says she identifies as male—and he doesn’t discriminate on the basis of gender identity when he disregards her gender identity in deciding whether to hire her.
But in the context of single-sex bathrooms, locker rooms, and showers, the concept of discrimination on the basis of gender identity plays out very differently from what the transgender ideologues contend. In this context, a school complies with the (hypothetical) norm of nondiscrimination on the basis of gender identity when it disregards a student’s gender identity and instead assigns the student to the facilities that correspond with his biological sex.
In other words, it is the advocates of transgender access to bathrooms and showers who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of—in favor of—gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use.
The unsound proposition that a policy of separate facilities assigned by biological sex involves discrimination on the basis of gender identity collapses into incoherence. If a boy who identifies as female has a right under Title IX to use the girls’ restrooms and showers, then it would clearly be discrimination on the basis of gender identity to bar a boy who identifies as male from also using them. After all, the difference between these two biological males is that they have different gender identities. How could one of the males be allowed to use the girls’ facilities and the other be barred from doing so if Title IX bars discrimination on the basis of gender identity? In short, contrary to the understanding of Title IX that everyone accepts (or at least purports to accept), the transgender illogic would disallow any system of separate-sex facilities to survive.
3. In lending their support to Grimm’s claim, the Northern Virginia school boards are implicitly condemning their own policies. That’s true not only because Grimm’s claim logically entails (per my point 2) the abolition of any system of separate-sex restrooms. It’s true also because Grimm’s misunderstanding of Title IX, if it were to prevail, would mean that a girl who identifies as male must be allowed to use the boys’ shower facilities and that a boy who identifies as female must be allowed to use the girls’ shower facilities. From what I can tell from the amicus brief and from news reports, that is not something that the Northern Virginia school boards currently require.
Further, according to the WaPo article, the policies of the Northern Virginia school boards “don’t expressly guarantee students access to restrooms that match their gender identity, but schools work to accommodate students’ requests individually.” If Grimm’s claim were to succeed, the school boards would be required to provide that express guarantee.
The article also indicates that the Falls Church school system uses single-person gender-neutral bathrooms to accommodate transgender students. That strikes me as a sensible solution. But, contrary to what the article implies, that same option was made available to, and rejected by, Grimm. (Grimm’s high school built three single-stall restrooms to accommodate her.) It won’t be an acceptable solution if Grimm prevails.
So why are the Northern Virginia school boards supporting Grimm’s claim? A cynic might suspect that some board members are eager to have a court tell them they have to do something that they don’t have the political will (or folly) to impose on their constituents—and that other board members aren’t paying much attention.