RICHMOND, Va. — A federal appellate court has “for the first time ever” held that a public high school may not provide separate restrooms and locker rooms for students on the basis of biological sex alone, according to dissenting judge’s opinion.
The fourth U.S. Circuit Court of Appeals in Richmond, Va., threw out a lower court’s dismissal of a lawsuit by a transgender student claiming the Gloucester County, Va., school board discriminated against her by not allowing her to use the boys’ restroom after she announced a supposed transition to being male. Title IX of the federal Education Amendments Act of 1972, the ruling stated, requires that schools receiving government funds prohibit gender-identity discrimination.
Rodney Autry, a Gloucester County pastor who joined an amicus brief supporting the school board, said that the ruling could prove to be a “landmark decision.”
“This is a complete removal of time-honored precedent,” said Autry, pastor of Union Baptist Church in Hayes, Va. “… This is a rather sweeping kind of change in a short period of time,” he said, noting “just how short a period of time it’s been since this snowball began.”
Russell Moore, president of the Ethics & Religious Liberty Commission, classified the ruling as fruit of the sexual revolution.
“Separating men and women in restrooms isn’t discrimination,” Moore said in written comments. “It’s common sense policy that protects the vulnerable. Treating transgender students with respect doesn’t require sexualizing school locker rooms and restrooms. The sexual revolution presents a false choice between sexual nihilism and discrimination, a dichotomy we have to reject for everyone’s sake.”
The student who filed the lawsuit — identified in court documents only as G.G. — underwent hormone therapy, legally changed her name to a male name and asked to be treated as a male before her sophomore year of high school in 2014. She was allowed to use the boys’ restroom for “about seven weeks” before parents of other students complained, according to the ruling.
The school board eventually adopted a policy limiting restrooms and locker rooms to “the corresponding biological genders.” Students “with gender identity issues,” the policy stated, “shall be provided an alternative appropriate private facility.”
But the student claimed using a private unisex restroom made her feel “even more stigmatized.” That led to her avoiding restroom usage altogether at school and as a result, according to the ruling, developing multiple urinary tract infections.
G.G. made arrangements to fulfill physical education requirements “through a home-bound program” to avoid using locker rooms, the ruling states.
Two judges on a three-judge panel — both nominated by President Obama — ruled a lower court erred by not interpreting Title IX’s ban of sex discrimination as including gender identity discrimination.
Although gender identity is not mentioned explicitly in Title IX, the judges said Supreme Court precedent requires that the Department of Education be allowed to interpret its own regulations where ambiguity exists. The department stated in a 2015 opinion letter, “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.”
The letter went on to “encourage schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”
The Fourth Circuit also ruled the district court erred in its decision to bar the student from using boys’ restrooms while the case was pending. Both matters were remanded to the lower court for reconsideration according to the “correct standard.”
In the footnote, the ruling noted “the limitations of a nonmalleable, binary conception of sex.”
In a blistering dissent, Judge Paul Niemeyer, a George H.W. Bush appointee, called the majority’s ruling “unprecedented,” “unworkable” and “illogical.”
“This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes,” Niemeyer wrote. “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 the 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 … between students of the opposite biological sex,” Niemeyer wrote.
Autry, the Gloucester County pastor, cited “moral” and “practical” reasons for opposing the majority ruling.
Morally, the ruling “open[s] the door to far more issues of a sexual nature in our public schools than we can even anticipate at this point in time,” Autry said. Practically, “there were obviously workable solutions to this dilemma short of going nuclear,” he said, citing his experience as chancellor of a Christian school connected with a church he pastored.
“There was an easily discovered and employed pragmatic solution to the problem if the parties wanted an easily discovered and employed pragmatic solution to the problem,” Autry said. “It’s very painfully obvious that a solution was not what was sought. A systematic change was sought.”
Autry noted the need for compassionate ministry to individuals struggling with gender identity even as Christians contend for decency and safety in the public arena.
“My personal experience is I have yet to meet someone struggling with any gender identity issue who does not have some story of brokenness,” he said.
The case, G.G. v. Gloucester County School Board, will be scheduled for further consideration before a district court.
— by David Roach | BP