The Fourth Circuit, 2-1, has again ruled that a student born a girl has a right to present as a boy and force her way into her school’s male restrooms and locker rooms. The school’s offer to allow “Gavin” Grimm to use private facilities was “demeaning” and, in the panel majority’s opinion, violated both Title IX of the Education Amendments of 1972, which deals with sex discrimination in education, and the Equal Protection Clause of the U.S. Constitution. The case is Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020). The school board has asked the Supreme Court to hear the case, and the NLF has filed a brief on behalf of ourselves and several other organizations requesting that the Court do so.
It is, of course, no surprise that the majority of the circuit court panel, when holding that the general prohibition on sex discrimination in Title IX covered restroom and locker room use by a trans student, relied on the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). In Bostock, a 6-3 majority held that an employer violated Title VII when it fired an employee for exhibiting as trans. The Court reasoned that, but for the individual’s birth sex, he would not have been fired for exhibiting as a woman. This, of course, is illogical wordplay, and the NLF and the other organizations have asked the Supreme Court to take the opportunity offered in Grimm to reconsider its reasoning in Bostock. As we pointed out, under the Bostock rationale, an employer cannot fire a male exhibiting as male for repeatedly entering the female restroom, as sex would play a role in the discharge decision. That this is where the logic leads is demonstrated by the “Model Policies” recently published by the Virginia Department of Education on how that state’s schools are to treat transgender students, as they provide that “[s]chool staff should not confront students about their gender identity upon entry into the restroom.”
The equal protection “analysis” of the Fourth Circuit majority is not any better; it is a perfect example of shutting your eyes to reality and crafting a heads-I-win-tails-you-lose jurisprudence. “Trans” individuals are given that designation because they are exhibiting as a sex other than their actual sex. Thus, by definition they are not in the same group as those who exhibit as their actual sex. But the panel majority held that Ms. Grimm was the same “in all material respects” as male students exhibiting as male, and so it violated her rights to be treated as if she were acting inconsistently with her actual sex, even though she was. Hopefully, the Supreme Court will see through this double-talk, review the case, and reverse.