Bathroom, locker room, and shower facility policies that protect privacy based on biology while also accommodating transgender students make good sense. And as Niemeyer explains, they comply with the law, too: “when the school board assigned restrooms and locker rooms on the basis of biological sex, it was clearly complying precisely with the unambiguous language of Title IX and its regulations.”

On Tuesday [April 18], the Fourth Circuit Court ruled against a Virginia school district that sought to accommodate a transgender student while also protecting the privacy rights of other students.

The court concluded that Title IX of the Education Amendments of 1972—which prohibits discrimination on the basis of sex—should be interpreted as prohibiting discrimination on the basis of gender identity, as a Department of Education letter suggested in 2015. The ruling allows a lawsuit brought by a transgender student to proceed.

The case involves a biological girl who identifies as a boy. The court’s majority explains it this way: “G.G.’s birth-assigned sex, or so-called ‘biological sex,’” is female, but G.G.’s gender identity is male.” Note the scare quotes around what the court calls “so-called ‘biological sex.” Biological sex, in fact, is precisely what Congress protected in 1972.

In a stinging dissent, Judge Paul Niemeyer points out that “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.” It’s hard to imagine that that’s what Congress was prohibiting when it enacted Title IX in 1972.

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Indeed, the court’s ruling goes against human history, practice, and common sense. Niemeyer explains:

This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. … 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.

Niemeyer even points out that students have privacy rights to not have students of the other biological sex in their locker rooms:

Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind.

Nevertheless, G.G. sued the school district. Why?

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Another article on this topic:  Divided Fourth Circuit Panel Imposes Statutory Sex Change