‘This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety …’
RICHMOND, Va. – On Tuesday, the Fourth Circuit Court of Appeals published a split opinion in the case of G.G. (aka Gavin Grimm) v. Gloucester County School Board, reversing the district court’s dismissal and remanding the case back to consider certain hearsay evidence in order to consider a preliminary injunction.
The case was brought by Grimm, a 16-year old girl who considers herself a transgender boy, because she wanted to use the boy’s restrooms at her high school.
Because Grimm is a biological female, I refer to her using feminine pronouns.
After she began using the boys’ restrooms with the approval of the school administration, the school began receiving complaints.
The school board then passed a policy banning Grimm from using the boys’ restroom.
Grimm alleges the school board impermissibly discriminated against her in violation of Title IX and the Equal Protection Clause of the Constitution.
Circuit Judge Henry F. Floyd, an Obama nominee, wrote the opinion for the panel, in which Senior Judge Andre M. Davis, a Clinton nominee, joined.
Davis wrote a separate concurring opinion, while Judge Paul V. Niemeyer, a George H.W. Bush nominee, wrote a separate opinion concurring in part and dissenting in part.
The appeal is centered on whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.
Title IX states, “No person … 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.”
However, the U.S. Department of Education’s (Department) regulations implementing Title IX allow for the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.”
An opinion letter by the Department’s Office for Civil Rights (OCR) interpreted how the regulation should apply to transgender individuals, stating, “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.”
Grimm registered as a girl in her freshman year, but since her sophomore year in high school, she has been diagnosed with gender dysphoria, which is the revised diagnosis for gender identity disorder in the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
According to the American Psychiatric Association (APA), “For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her, and it must continue for at least six months. In children, the desire to be of the other gender must be present and verbalized. This condition causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
The change from gender identity disorder to gender dysphoria is the result of massive lobbying by LGBT organizations to destigmatize transgenderism while still providing those claiming to be transgender with access to treatment options such as counseling, cross-sex hormones, gender reassignment surgery, and social and legal transition to the desired gender.
While the LGBT lobby and those making up the Sexual and Gender Identity Disorders Work Group might have preferred removing the condition from being a psychiatric diagnosis altogether, as it did for homosexuality in 1973, they realized it could jeopardize access to care.
In order to get insurance coverage for medical treatments, individuals require a diagnosis.
Grimm and her mother advised school officials at the beginning of her sophomore year that Grimm was a transgender boy and the school took steps to ensure Grimm would be treated as a boy by teachers and staff.
At Grimm’s request, school officials allowed Grimm to use the boys’ restroom, which she did for about seven weeks.
However, parents contacted the school board requesting it bar Grimm from continuing to use the boys’ restroom.
Board member Carla B. Hook added a transgender restroom policy to the Nov. 11, 2014 agenda.
The policy required use of restroom and locker room facilities to be limited to the corresponding biological genders and those with gender identity issues would be provided an alternative appropriate private facility.
During public comment, 27 people spoke, the majority of which supported the policy.
The item was continued to the Dec. 9 meeting where 37 people spoke, the majority of which supported the proposed policy.
One speaker compared Grimm to “a person who thinks he is a ‘dog’ and wants to urinate on fire hydrants.”
Following this second comment period, the board voted 6-1 to adopt the policy, thereby barring Grimm from using the boys’ restroom at school.
Grimm alleged she cannot use the girls’ restroom since women and girls in those facilities react negatively because they perceive her to be a boy and it would “cause severe psychological distress” and would be “incompatible with his treatment for gender dysphoria.”
Despite the school constructing new single-stall unisex restrooms available for all students to use, Grimm stated she could not use the new unisex restrooms because it made her “feel even more stigmatized” and being required to use the separate restrooms sets her apart from her peers and serves as a daily reminder that the school views her as “different.”
Grimm claims because of the stigma and exclusion, her social transition is undermined and she experiences “severe and persistent emotional and social harms.”
As a result, Grimm avoided using the restroom at all while at school and developed multiple urinary tract infections.
While the majority of the panel agreed with Grimm in reversing the dismissal and remanding the case back to the district court, Niemeyer only concurred with majority in remanding the case back to the district court.
With respect to whether Grimm stated a claim under Title IX and whether the district court abused its discretion in denying Grimm’s motion for a preliminary injunction, Niemeyer said he would affirm the district court’s dismissal and its denial of Grimm’s motion for a preliminary injunction, therefore dissenting from the majority on those issues.
Niemeyer appeared to find the majority’s decision to define sex as a person’s gender identity instead of the person’s biological status as male or female, absurd.
He wrote, “Accepting that new definition of the statutory term ‘sex,’ 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. Rather, it must now allow a biological male student who identifies as female to use the girls’ restrooms and locker rooms and, likewise, must allow a biological female student who identifies as male to use the boys’ restrooms and locker rooms. This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”
Niemeyer pointed out it also tramples on the very concerns expressed by Grimm, who said she should not be forced to go to the girls’ restrooms because of “severe psychological distress” it would inflict on her because female students “reacted negatively” to her presence in girls’ restrooms.
He said “Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a result, schools would no longer be able to protect physiological privacy as between students of the opposite biological sex.”
Niemeyer stated, “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 said the majority’s opinion “reaches an unworkable and illogical result.”
Dr. Paul McHugh, who for 40 years has been the University Distinguished Service Professor of Psychiatry at Johns Hopkins Medical School and the former psychiatrist in chief at Johns Hopkins Hospital, said he’s been studying people who claim to be transgender and, over that time, has “watched the phenomenon change and expand in remarkable ways.”
In an article published on www.thepublicdiscourse.com, McHugh referring to transgenderism, wrote, “A rare issue of few men – both homosexual and heterosexual men, including some who sought sex-change surgery because they were erotically aroused by the thought or image of themselves as women – has spread to include women.”
He said even young boys and girls have begun to present themselves as the opposite sex and, over the last 10 or 15 years, this phenomenon has increased in prevalence, seemingly exponentially whereas almost everyone has heard of or met such a person.
He goes on to say champions of this phenomenon, encouraged by the broader LGBT movement, “claim that whether you are a man or a woman, a boy or a girl, is more of a disposition or feeling about yourself than a fact of nature. And, much like any other feeling, it can change at any time, and for all sorts of reasons.”
After pioneering sex-change surgery at Johns Hopkins, McHugh stated, “[W]e demonstrated that the practice brought no important benefits. As a result, we stopped offering that form of treatment in the 1970s.”
He said it became obvious, however, their efforts “had little influence on the emergence of this new idea about sex, or upon expansion of the number of ‘transgendered’ among young and old.”
While pop culture glamorizes transgenderism, by things such as Annie Leibovitz’s photography of Bruce Jenner’s transformation to Caitlyn, McHugh said, “Think, for example, of the parents whom no one – not doctors, schools or even churches – will help rescue their children from these strange notions of being transgendered and the problematic lives these notions herald.”
According to McHugh, most youngsters seeking sex-reassignment do not find therapists willing to assess and guide them in ways to work out their conflicts and correct their assumptions that sex-reassignment will ease or resolve them.
He said, “Rather, they and their families find only ‘gender counselors’ who encourage them in their sexual misassumptions.”
McHugh says it is also important to note both the state and federal governments are actively seeking to block any treatments for gender dysphoria “that can be construed as challenging the assumptions and choices of transgendered youngsters,” and quoted Obama’s senior advisor Valerie Jarrett, who said, “As part of our dedication to protecting America’s youth, this administration supports efforts to ban the use of conversion therapy for minors.”
The larger issue he says is the idea that one’s sex is fluid and a matter open to choice running unquestioned through our culture, taking on cult-like features.
McHugh said it is doing a lot of damage to families, adolescents and children, and “should be confronted as an opinion without biological foundation wherever it emerges.”
He concluded with, “But gird your loins if you would confront this matter. Hell hath no fury like a vested interest masquerading as a moral principle.”