A federal court ruling in a Virginia transgender teen’s Title IX case will have an immediate effect on a suit brought against the state last month over HB2, which requires that people in government and educational facilities use the bathroom specific facility correlating to their gender as represented on their birth certificate.
The 4th Circuit of Appeals reversed a lower court ruling on Tuesday. The action allows 16-year-old Gavin Grimm, a junior in Gloucester County, Virginia, to use the bathroom that matches Grimm’s identified gender (male) and not his biological gender.
Grimm has been diagnosed with gender incongruence and has been living as a boy and undergone hormone therapy since the end of his freshman year, but has not undergone sex reassignment surgery.
Grimm’s claimed that his rights were violated under Title IX, which was passed to ensure that women were given equal rights to education.
Title IX reads, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Grimm’s argument rested on an opinion letter penned by the Board of Education saying that “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 opinion letter was just that, an opinion relating to federal legislation, until the 4th Circuit ruled that it was law, stating, “Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of [Grimm’s] Title IX claim. Because we conclude that the district court used the wrong evidentiary standard in assessing [Grimm’s] motion for a preliminary injunction, we vacate its denial and remand for consideration under the correct standard.”
By ruling that Grimm was discriminated against under Title IX, the Fourth Circuit puts to bed the question of whether the plaintiffs in the North Carolina lawsuit have standing, unless a stay is issued on the decision by the U.S. Supreme Court. The ruling may have put the case to bed altogether.
The plaintiffs in the NC case are three transgendered people in the University of North Carolina system as either students or educators, backed by Lambda Legal, the American Civil Liberties Union of North Carolina and Equality North Carolina.
Their claim is that HB2 was discriminatory to them, claiming in the lawsuit that “by singling out LGBT people for disfavored treatment and explicitly writing discrimination against transgender people into state law, (the law) violates the most basic guarantees of equal treatment and the U.S. Constitution.”
The suit was brought against McCrory, Attorney General Roy Cooper, and the University of North Carolina System.
Attorney cites agency overreach
Elliot Engstrom, lead counsel for the Civitas Institute Center for Law and Freedom, said that the ruling is a clear example of the abuse of deferring excessively to agencies in interpreting statutes.
Engstrom’s argument is not based on whether or not Grimm should be able to choose which restroom to use, but on the process by which it was decided.
“This is the definition of excessive agency deference,” he said. “The Executive Branch does not have the power to legislate, but unfortunately our courts are increasingly allowing the executive to both write and enforce laws.
“This is one more example of our courts failing in their role of reigning in executive overreach. The Department of Education is an executive agency and is an arm of President Barak Obama and it unilaterally has decided to enforce Title IX as if the law provided protections for gender identity.
“This is clearly not the meaning of Title IX based on a plain reading of the law. Title IX prohibits discrimination based on sex, if we want to outlaw discrimination based on gender identity that decision must go through the legislature.”
LGBT advocates celebrate ruling
The ACLU of NC and Lambda Legal released a joint statement following the ruling that said, “Today’s ruling makes plain that North Carolina’s (HB2) violates Title IX by discriminating against transgender students and forcing them to use the wrong restroom at school. This mean-spirited law not only encourages discrimination and endangers transgender students – it puts at risk billions of dollars in federal funds that North Carolina receives for secondary and post-secondary schools.”
Senate leader laments ruling
Senate Leader Sen. Phil Berger (R-Rockingham) released a statement following the ruling saying, “People need to wake up: Roy Cooper, Barack Obama and two unelected federal judges are on the verge of completing their radical social reengineering of our society by forcing middle school-aged girls to share school locker rooms with boys. (HB2) was our effort to stop this insanity, and I hope this proves the bathroom safety bill has nothing to do with discrimination and everything to do with protecting women’s privacy and keeping men out of girls’ bathrooms.”
Berger also highlighted language used in Judge Paul Niemeyer’s dissenting opinion calling the decision a misconstruction of Title IX’s meaning.
“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. This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”