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                                          Senator Bob Cassilly

                                                    District 34, Harford County

​​Transgender Bathroom School Policies

Originally published on June 4, 2016

The issue of transgender use of public restrooms has suddenly become a hot topic for Maryland’s middle and high schools.  This occurred after an appeals panel of three federal judges from the U.S. Fourth Circuit issued a ruling in April in a case out of Gloucester County, Virginia, Grimm v. Gloucester County School Board.  The appeals panel held for the first time that a federal law, Title IX, which was enacted to prevent sex discrimination in the allocation of federal education funding, now also applies to transgender students.   The two judges on that  panel appointed by President Obama ruled that federal courts are bound by an opinion issued by the Obama Administration’s Department of Education, which states that Title IX should now be interpreted to provide some general level of support for those who advocate for sex neutral restrooms in public schools. 

The third judge on that panel, appointed by President Bush, agreed with the trial judge who had dismissed the lawsuit on the grounds that Title IX clearly does not mention transgender issues, was never intended by Congress to address transgender issues, Title IX can be amended only Congress and not the courts or the Department of Education, and  matters related to transgender students are by our Constitution within the discretion of state governments and local boards of education.   The appeals panel has now sent the Grimm case back to the trial court in Virginia to consider whether Gloucester County violated Title IX by the county’s treatment of transgender students.  While the case is far from over, the ruling leaves a wake of anxiety and frustration as transgender advocates move prematurely, supposedly under the cover of the federal law, to compel schools to immediately  adopt sex neutral restroom policies.
I have heard from quite a number of citizens who are sincerely distressed by these developments.  They are justifiably perplexed by the notion that unelected federal judges and bureaucrats would have the audacity to skirt the federal and state legislative processes and employ administrative dictates to rewrite federal law and overturn state laws and policies embodying ancient traditions and morals concerning the natural differences between the sexes.  Those who raise their voices to question such an anti-democratic exercise are rightfully incensed that they are labeled as hateful and bigoted.  My short response is that Grimm v. Gloucester is far from over and those who rely upon that decision as the final word act in haste.  For those interested, I have provided the following, detailed response.

Title IX, also called the Equal Opportunity in Education Act, states that no person shall be subject to discrimination on the basis of sex in any education program that receives federal financial assistance.  Two of the four federal judges involved in the Grimm case, the trial court judge in Virginia and an appeals court judge on Fourth Circuit, appointed by Presidents Reagan and Bush, rightly concluded that Title IX says nothing about transgender students – a point with which the  two Obama appointed judges on the three judge appeals panel agree.  However, the Obama appointed judges ruled that Congress’s 40 year silence on transgender issues was somehow trumped by the opinion letter issued in 2016 by President Obama’s Department of Education.  Those two judges and the Obama Administration insist that, given the Congress’ silence on the matter, courts must defer to that opinion letter as a source of the Obama Administration’s “wise policy” concerning governmental discretion in the application of Title IX. 
The Department of Education opinion states that Title IX restrictions now include an as yet undefined level of protections for an as yet undefined class of transgendered students.   While some have rushed to the conclusion that the Grimm case and the Department of Education opinion compel Maryland schools to immediately provide wide open restroom access for members of both sexes, that outcome is far from certain because the Grimm case is not yet over and the Virginia school district from which it stemmed is not required by the Fourth Circuit panel’s decision to make any immediate changes to accommodate transgender students.  In fairness to Gloucester County, Virginia, prior to the Grimm case, they were already providing transgender students, and any student, with access to single occupant, unisex restrooms and there was no claim that the Gloucester County School District  otherwise discriminated against transgender students.  The school system simply restricts access to general restrooms to those students whose genitalia are consistent with the sign on a restroom door.
Now that the Grimm case has been sent back to the federal trial court in Virginia, the big issue that remains to be decided by that court is how schools should apply the specific terms of the Department of Education’s opinion letter, which states in pertinent part: “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…”   One can certainly make a strong case that, consistent with that opinion, schools “generally” treat transgender students the same as all other students when the only different treatment the transgender students receive is their optional use of the single occupant unisex restrooms in addition to the group restrooms assigned to their biological sex. 
The Virginia high school student in the Grimm case, who has female sex organs but prefers to be identified as a male, complained that the unisex restrooms in Gloucester County schools, which are open to all students, somehow stigmatizes transgender students.   That viewpoint should of course be weighed against the interests of millions of 13-17 year old children whose proper sense of modesty, age appropriate insecurities, and religious and cultural backgrounds might cause them to feel considerable anxiety when a member of the opposite sex, who they have been sitting beside in class for many years, suddenly follows them into the restroom.
This issue is far from decided by the courts and the Obama Administration’s more recently issued “guidance” on the matter simply adds an additional layer of confusion.