The West Virginia public school system, like public schools across the country, must now sort out the disconcerting predicament of how to accommodate girls who want to use the boys’ bathroom and boys who want to use the girls’ bathroom… as if they didn’t have enough to worry about already.
The U.S. Justice Department and the U.S. Department of Education have jointly sent a letter to schools instructing them to allow transgender students to use bathrooms that match their gender identity. The letter purports to be just a useful guide, until the second page where school systems are told that non-compliance will lead to a loss of federal funds.
Gee, thanks for the help.
The bathroom issue is coming to a rapid boil following the North Carolina controversy and a U.S. Court of Appeals for the Fourth Circuit decision last month in support of a transgender student. The court found that Gloucester, Virginia high school student Gavin Grimm had a right to use the boys’ bathroom.
Grimm was born a girl, but now identifies as a boy. He has been diagnosed with gender dysphoria, a medical condition where an individual has a strong identity with the gender opposite their sex at birth. He has not had gender reassignment surgery.
Initially, Grimm used the bathroom in the school nurse’s office. However, he said that made him feel stigmatized, so the school allowed him to use the boys’ bathroom, as he requested.
That triggered complaints and prompted the school board to pass a policy keeping restrooms segregated based on biological sex. The school subsequently created several gender-neutral restrooms that could be used by Grimm or anyone else.
Grimm sued, claiming that using the unisex restrooms “make him feel even more stigmatized.” The Appeals Court ruled in his favor saying that Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, is not restricted to one’s biological sex; it also includes other concepts of sexuality, including gender identity.
Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, in his dissent questioned the majority’s conclusion, finding no case law to support their argument that “sex” refers to anything other than a person’s biological status.
Niemeyer added that based on the majority’s ruling, “schools would no longer be able to protect the physiological privacy between students of the opposite biological sex.”
The Appeals Court’s decision and the Obama administration’s edict are both an overreach. The court arbitrarily redefined what the word “sex” means in Title IX and Washington forced a one-size-fits-all policy on public schools.
Meanwhile, federalism was already working. Gloucester High School had worked out a reasonable alternative for Grimm and any other student who might question their sexuality.
That’s not discrimination; that’s accommodation.