The Fourth Circuit Court ruled today 
sought to accommodate a transgender
 student while also protecting the privacy
 rights of other students.
The federal 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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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? Because the district 
created a policy which says that bathroom
 and locker room access is primarily 
based on biology, while also creating 
accommodations for transgender
 students. Specifically, the policy is that 
only biological girls can use the girls’ 
room, only biological boys can use the
 boys’ room, and any student can use 
one of the three single-occupancy 
bathrooms, which the school created 
specifically to accommodate transgender 
students.
But even this accommodation wasn’t 
good enough. Hence the lawsuit and 
Tuesday’s ruling.
In a concurring opinion, Judge Andre
 Davis claims the student is at risk of 
“irreparable harm” if forced to use a
 single-occupancy bathroom. Davis 
says that to support the claim of 
“irreparable harm, G.G. submitted an
 affidavit to the district court describing 
the psychological distress he experiences
 when he is forced to use the single-stall 
restrooms.”

Davis adds that “G.G. experiences daily
 psychological harm that puts him at risk
 for long-term psychological harm, and his
 avoidance of the restroom as a result of 
the Board’s policy puts him at risk for 
developing a urinary tract infection as 
he has repeatedly in the past.” Davis
 concludes that for G.G. to use single-
occupancy restrooms “is tantamount
 to humiliation and a continuing mark
 of difference.”
Niemeyer, however, points out that 
the majority relies not on the actual 
text, history, or legal implementation 
of Title IX, but on a 2015 letter from
 the Office for Civil Rights of the
 Department of Education: “The 
recent Office for Civil Rights letter, 
moreover, which is not law but which 
is the only authority on which the
 majority relies, states more than the 
majority acknowledges.” Indeed, that 
letter suggested that schools “offer the
 use of gender-neutral, individual-user
 facilities to any student who does not 
want to use shared sex-segregated
 facilities.”
At the end of the day, it’s hard to 
disagree with Niemeyer when he
 writes, “Any new definition of sex
 that excludes reference to physiological
 differences, as the majority now 
attempts to introduce, is simply an
 unsupported reach to rationalize a 
desired outcome.” This is simply an
 unaccountable agency and an activist 
court rewriting Title IX and remaking 
bathroom policy across our nation.
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.”