The Gloucester decision by the Fourth Circuit Court of Appeals has many people wondering if the court decided members of the opposite biological sex will be forced to share locker rooms, hotel rooms and restrooms together. The answer is NO.
The Gloucester case involved a female student suing to use the male restrooms at a public high school. While the ruling was a disappointment because it was the first time a court determined the term “sex” no longer refers to the biological difference between a male and a female, the ruling is wrong and is most likely to be reversed.
In Title IX, federal funding to schools prohibits discrimination based on “sex,” however there have been at least five federal and state court decisions that rejected the argument that Title IX requires private facilities like restrooms and locker rooms to be shared among students of a different biological sex. It’s important to note that this decision (2 to 1) was an outlier and makes it a good case for reversal..
These kinds of battles take place in courtrooms across the country and eventually make their way before the Supreme Court. Freedom and common sense tend to prevail as it did in the Hobby Lobby case. While that decision was close, it does remind us all how important appointments to the SCOTUS are and the long lasting affront to liberty and freedom we could face if the appointed judges do not uphold our privacy rights.
Hobby Lobby chose to fight for their freedom and liberty and it’s up to school districts, guided by local parents, to do the same.
This decision was about whether Title IX, which bans sex discrimination at public high schools and colleges that receive federal funding, includes discrimination based on “gender identity.” A few years ago the U.S. Department of Education took the radical position that the term “sex” no longer means a person’s biological sex. This is now a subjective term based on what an individual believes their gender to be. The U.S. Department of Education re-interpreted a 40-year old law because according to the court Title IX is “silent as to which restroom transgender individuals s are to use when a school elects to provide sex-segregated restrooms.” Essentially the Fourth Circuit Court removed the traditional or biological term of “sex” in Title IX and replaced it with “gender identity.”
Even with this ruling, which sends the case back to the lower court to hear additional evidence, it’s important to know that the court did not rule that the school must now allow members of the opposite biological sex to share these facilities. The Gloucester School District or any other school district in the Fourth Circuit (which includes several south-eastern states) are not required to force students of the opposite biological sex to use the restrooms, locker rooms, or showers together.
Also within this ruling the Fourth Circuit acknowledged that there is a constitutional right to bodily privacy saying, “an individual has a legitimate and important interest in bodily privacy.” What was missing in the ruling was whether that right outweighs the plaintiff’s desire to use the restroom of the opposite biological sex
The Gloucester ruling also does not set a national precedent. There are five federal and state courts that all ruled that Title IX’s ban on sex discrimination does not include “gender identity.”
See:
1) Johnston v. Univ. of Pittsburg f Com. Sys. Of Higher Educ. 97 F. Supp. 3d 657 (W.D. Pa.2015)
2) Kastl v Maricopa County Community College District, 325 F. App’s 492 (9th Cr. 2009)
3) Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994)
4) Doe V. Clark Cty. Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008)
5) RMA v Blue Springs R-IV Sch. Dist., 477 S.W.3d 185 (Mo. Ct. App. 2015)
The Fourth Circuit Court ruling does not require schools to change their policies so that students of the opposite biological sex must share restroom, locker rooms or showers together.
No school, college or state has ever lost federal funding under title IX, however as the U.S. Department of Education tries to wield unprecedented power, the threat alone can cause schools to implement policies parents do not support. Before a school could lose funding that school is entitled to a hearing before an administrative law judge and is then reviewed by a federal court. Even if a school were to lose, they have 30 days to comply in order to keep their funding. During this court battle the district continues to receive all of the federal funding it’s entitled to receive.
The Fourth Circuit sent this case back down to the lower court requiring them to re-examine the radical interpretation of Title IX by the U.S. Department of Education. This decision has not overturned privacy rights in the Gloucester school district, the North Carolina law or any other privacy protections currently in place.
This case also declined to address whether the radical interpretation of Title IX would violate the constitutional right to bodily privacy leaving this open for a constitutional challenge against the U.S. Department of Education.
As New Hampshire schools grapple with whether to implement a new policy, it’s even more important that parents know the facts and express their opinions to their elected board members.
Given the failure by the New Hampshire School Boards Association to provide detailed facts so parents can make informed decisions, Cornerstone continues to support parents and local control in education by offering additional information.
It is now up to parents, residents and school board members in each district to analyze this information and then decide if a new policy is needed and what that policy should look like.
If the community wants to maintain current policy that requires students to use separate facilities based on a student’s biological sex, there certainly doesn’t seem to be a reason to reject that position.
For many parents this boils down to a person’s right to privacy. The U.S. courts have repeatedly upheld that right. Are you willing to let the radical interpretation of Title IX by federal bureaucrats decide what is best for your children or will you as parents and residents make that decision?
See previous article: http://www.girardatlarge.com/2016/04/boys-shower-girls-nh-schools/
Ann Marie Banfield currently volunteers as the Education Liaison for Cornerstone Action in New Hampshire. She has been researching education reform for over a decade and actively supports parental rights, literacy and academic excellence in k-12 schools. You can reach her at: abanfield@nhcornerstone.org
