by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
You wouldn’t know it from the headlines, but the debate over transgender access to bathrooms, shower rooms, and locker rooms didn’t start with the passage of HB2, and the Obama administration’s decision to intervene in that debate didn’t start with the recent threats and law suits directed at North Carolina. School boards, municipalities, and state governments across the country have been struggling with the issue for several years, and throughout that time the Obama administration has been doing its best to impose its preferred solution on all of them.
One of those local struggles began in the summer of 2014 at Gloucester High School in Virginia and involved a rising sophomore—identified in subsequent court documents as “G.G.”—who had received a diagnosis of gender dysphoria. Having made the decision to undergo a partial transition from female to male (i.e., a change of name and clothing and the initiation of hormone therapy but no surgical changes), G.G. and G.G.’s mother met with the school’s principal and guidance counsellor to discuss what the school could do in the coming year to assist G.G. with the transition.
School records were changed to reflect G.G.’s new name and sexual identity, and an email message was sent to teachers instructing them to address him by the new name and to use male pronouns when they referred to him. At his request, G.G. was given permission to use a “home-bound” physical education program, thereby finessing the issue of which locker and shower rooms to use, and, “because [he] was unsure how other students would react to [his] transition,” he was given permission to use the restroom in the nurse’s office.
Everything went very well until G.G. decided that using the nurse’s restroom was “stigmatizing.” He requested and was given permission to use the boys’ restrooms instead, but soon afterwards the school began receiving complaints from parents and students. After considering the problem at two public meetings, the Gloucester County School Board adopted the following policy:
Whereas the GCPS recognizes that some students question their gender identities, and
Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and
Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore
It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.
Gloucester High School implemented the new policy by creating three unisex restrooms “for use by all students regardless of biological sex or gender identity,” but G.G. was not satisfied. He requested an opinion from the Department of Education’s Office of Civil Rights, and in response he received a letter from an acting deputy assistant secretary stating:
When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.
Thus encouraged, G.G. filed a complaint in federal district court in which he claimed that the school board had violated his rights under Title IX and under the equal protection clause of the US Constitution.
The Obama administration provided further support in the form of an amicus brief in which it declared:
Under Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.
In a well-reasoned opinion, the U.S. District Court for the Eastern District of Virginia dismissed G.G.’s compliant, but a three-member panel of the U.S. Court of Appeals for the Fourth Circuit reversed that decision. In support, the two-member majority cited the government’s amicus brief and the opinion letter quoted above, and it held that the latter should be given “controlling weight” because it represented “the Department’s interpretation of its own regulation.”
Judge Niemeyer, who was the third member of the panel, filed an impassioned dissent:
The majority … reverses the district court’s ruling, without any supporting case law, and concludes that when Title IX and its regulations provide for separate living facilities, restrooms, locker rooms, and shower facilities on the basis of sex, the statute’s and regulations’ use of the term “sex” means a person’s gender identity, not the person’s biological status as male or female. To accomplish its goal, the majority relies entirely on [the] 2015 letter sent by the Department of Education’s Office for Civil Rights to G.G….
Accepting that new definition of the statutory term “sex,” 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. 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. And, unwittingly, it also tramples on the very concerns expressed by G.G., who said that he should not be forced to go to the girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms. Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a result, 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.
On May 31st the Court of Appeals denied the school board’s request for an en banc hearing (i.e., for a new hearing by the entire Court), and on Wednesday the board filed a motion indicating that it would appeal to the US Supreme Court. Similar cases from other jurisdictions are making their way through the courts, and it seems inevitable that sooner or later the high court will have to decide the issue.