Judicial Supremacy and the Bathroom Wars


Accommodating transgender students, those who believe or wish themselves to be a sex different than their biological sex, is a big issue in schools across the nation. Districts are being bullied into going against common sense and biology. Out of fear of lawsuits, punishment by the Washington, D.C. Department of Education, or being called bigoted and prejudiced, school administrators are deciding to let anatomically male people into girls’ bathrooms, locker rooms, and showers. And vice versa. In April, a young person with female genitalia won the right to use male facilities at a Virginia school.

Title IX Egregiously Misapplied

An 11th-grade Gloucester, Virginia female student who is transgender, and now believes she is a male, demands use of the restroom, locker room, and showers reserved for biologically male students at Gloucester High School. School administration originally granted this wish. Later the local school board approved a policy requiring use of facilities according to biology.

But an April ruling by two members of a three-judge panel from the United States Court of Appeals for the Fourth Circuit has overturned the lower court’s refusal of a preliminary injunction to allow the student to use the preferred facilities. The lower court ruling meant that this female could use female only or unisex bathrooms, showers, or changing areas. Now that decision must be reevaluated because two judges believe to do otherwise is a Title IX violation.

Title IX is a collection of federal laws that were originally designed to eliminate possible discrimination against women in public schools. This decision by two Richmond, Virginia judges represents the first time that a federal appellate court has ruled that Title IX protects the rights of transgender students to use the bathroom that corresponds with their “gender identity.”

Last June, the U.S. Justice Department filed a “statement of interest” in support of the transgender student’s claim. The Department of Justice wants people treated as a person of the gender of choice, regardless of actual biological sexual attributes.

After the recent ruling, the Department issued this statement: “We are pleased with the Fourth Circuit’s decision, which agreed with the position that the United States advocated in its brief.”

According to the New York Times,

The Obama administration has been aggressive in its efforts to ensure that transgender students can use the bathrooms in public schools that correspond with their gender identities. Some federal agencies have threatened to rescind funding to pressure some municipal governments in California and Illinois to change their policies and allow transgender students to do so.

One of the ACLU lawyers representing the Gloucester student “argued that such state and local legislation violated federal law.” He says, “With this decision, we hope that schools and legislators will finally get the message that excluding transgender kids from the restrooms is unlawful sex discrimination.” (New York Times, 4-19-16)

Not All Agree

Only two of the three judges voted in favor of the transgender student. In fact, dissenting U.S. Circuit Judge Paul V. Niemeyer was adamant that this ruling is wrong and a misapplication of Title IX law. Niemeyer says, “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.” Niemeyer also objected to the Title IX reasoning for changing policy at schools. He says of the opinion of the other two judges, “More particularly, it also misconstrues the clear language of Title IX and its regulations.” (Education Week, 4-27-16)

Schools must accommodate transgender students in a manner that doesn’t harm other students or infringe on their privacy. The student’s court appeal stated that “using the girls’ restroom would cause severe psychological distress to the student” and that it “would be incompatible with his treatment for gender dysphoria.” The reason the student gives for refusing to use single restrooms or other facilities is that they “make him feel even more stigmatized. . . . Being required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’” (Case No. 15-2056) Every precaution should be taken to be kind to all students and to treat all students fairly, including the approximately 99.97% of them who aren’t transgender.

North Carolina Tries to Be Fair

The Fourth Circuit includes the states of Virginia, Maryland, West Virginia, North Carolina, and South Carolina. This new ruling is being considered by North Carolina, where legislators recently passed and the governor signed House Bill 2, a law stating that students must use facilities according to the sex indicated on their birth certificates. North Carolina enacted House Bill 2 (HB 2) in order to stop Charlotte from changing city laws to accommodate transgender people in the public restroom of their choosing, including in schools.

Legal representatives for the Human Rights Campaign, a Lesbian, Gay, Bisexual, and Transgender advocacy and lobbying organization, claims that this ruling nullifies North Carolina statute HB 2. The representative says, “Our expectation is that the North Carolina schools reverse course immediately, as in tomorrow.”

The End of Civility

It is unclear whether North Carolina will be able to hold fast on HB 2. The state government and citizens are being pressured to change the law and allow anyone into any facility. Bruce Springsteen, Cirque du Soleil, and other entertainers have cancelled contracts to perform in North Carolina. PayPal and other companies are refusing to locate in the state in protest of HB 2. The American Institute of Architects won’t hold its previously scheduled regional conference in North Carolina as a pressure tactic. President Obama has weighed in saying he believes the law should be repealed. North Carolinians are being accused of being backward and bigoted. This sort of bullying and coercion are the new normal in America. Don’t like a law? Accuse those who passed it of being bigots, racists, homophobes, or simply stupid. People fail to endorse your favorite candidate? Attack them, try to oust them, get them fired, or sue them.

Where is the civility, polite discourse, fact-based reasoning, and discussion that should be the norm? Responsibility rests on those who fail to understand that not everyone will agree on all subjects. Many simply can’t abide by that. There’s a new breed who believe that those who don’t agree with them are wrong — flat out wrong — and therefore must be silenced. This used to be a tactic only leftists used but it seems to have recently overflowed to include much of society.

Such is the case with those who are accusing North Carolina of passing an “anti-gay” law. It is actually common-sense protection of the rights of all citizens, including children in schools. Yet, most headlines proclaim that HB-2 is anti-transgender. Its opponents can’t accept a common sense solution to a problem plaguing states. The North Carolina legislature and Governor McCrory had the guts to address the issue head on.

Radical groups like the Gay Lesbian Straight Alliance, GLSEN, and the Human Rights Campaign have allied with teachers unions, the National Education Association (NEA) and the American Federation of Teachers (AFT) to push their version of transgender bathroom compliance on all schools.

The North Carolina law is not an accusation that transgender people are abusers, as some have portrayed. It is instead a means to exclude perverts who would sneak into bathrooms to cause havoc. Allowing full access to all bathrooms with no rules is asking for trouble. Those who would harm others will take, and have taken, advantage. Many women who have been raped have spoken out against shared facilities.

Where Do We Go from Here?

The fallout from the court ruling might lead citizens to give up all pretense that local school boards or state legislators or governors are in charge of much of anything. The federal government and activist judges seem to be fully in charge. When they tell us that our children must give up their privacy and undress with members of the opposite sex, parents are supposed to either be okay with that or be called hopeless, backward bigots. States and communities also risk losing federal funds that they send to Washington, DC, in hopes that they might be send a bit back to use for roads, bridges, schools, and such.

Where does it end? When will the Left and the Lesbian, Gay, Transgender, Queer activists be satisfied? When will the anti-Christian groups like the ACLU and the atheists be happy? Why do they continue to push for more silencing of opposition and engage in escalating attacks on traditional values? And what will citizens be expected to accept next?

Used with the permission of Eagle Forum.