By MIKE MANNO
Years ago the battle of the sexes was the conflict between men and women over their respective gender roles. Today the battle, in some respects, is still over gender roles but not necessarily between men and women but between the cis-gendered, a person who identifies with the sex of his birth, and the transgendered, those who don’t.
And the worst part is that it is playing out in our schools.
Back in the 1970s, Congress passed Title IX, a federal civil rights law, as part of the Educational Amendments of 1972. It was adopted to protect students from sex discrimination in educational programs that received federal funds. As issues involving persons with same-sex attractions and later those claiming gender nonconformance, questions began to be asked as to whether “sex discrimination” could be expanded to include gays, homosexuals, and the gender confused.
Short-circuiting a lot of legal history, the issue as to schools came to the forefront in the spring of 2016 while the Obama administration was suing North Carolina over a state law that restricted bathroom use to an individual’s sex at birth. Acting through the Departments of Justice and Education, the administration sent a “Dear Colleagues” letter to public school administrators addressing the issue of bathroom policy.
The letter stated: “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual user facilities when other students are not required to do so….When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”
Refusal to conform to the newly articulated “policy” could result in the loss of federal funds, the letter warned. Thus was set in motion debates and lawsuits over the meaning of the Dear Colleagues letter.
Then, in February of 2017, the newly inaugurated Trump administration reversed the policy, thus leaving the issue of transgender locker-room use up to local school boards and the states. Now the issue of who can be in which locker room or shower has taken on a constitutional aspect which has been overly generous to the “trans” students and awfully narrow to the rest.
The cases that have so far been percolating up through the system, such as the recent Oregon and Pennsylvanian cases, have struck a balance between the transgendered and cis-gendered that has tipped decidedly against the privacy rights of the cis-gendered (I really hate that term).
In a case against the Kenosha (Wisconsin) Unified School District, the parents of a transgender student obtained an injunction against the district’s policy of requiring students to use the facilities corresponding to the student’s birth sex. The policy was developed to protect the privacy rights of other students from being subjected to situations where they would be exposed and have exposed to them individuals from the opposite sex.
In ruling against the district’s policy, the Seventh Circuit Court of Appeals ruled: “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender-nonconformance, which in turn violates Title IX.”
Recently a similar case in Florida reached the same conclusion. “This is a clear warning to every school district in Florida and across neighboring states that if you have a policy that discriminates against transgender students you are subject to being sued and are likely to lose,” said the attorney from Lambda Legal, an LGBT advocacy group that argued the case.
In Philadelphia last month, the Third Circuit Court of Appeals not only ruled against the school district’s policy, but also voted 8-4 not to hear the case, which was decided by a three-judge panel, en banc — by the full court.
In evaluating the claims that the privacy rights of cis-gendered students would be violated by being forced to share bathroom and locker-room facilities while undressed with students of the opposite sex, the court said “the appellants claim that their right to privacy was violated because the policy permitted them to be viewed by members of the opposite sex while partially clothed. Regardless of the degree of the appellants’ undress at the time of the encounters, the District Court correctly found that this would not give rise to a constitutional violation because the School District’s policy served a compelling interest — preventing discrimination against transgender students.
“The constitutional right to privacy is not absolute. It must be weighed against important competing governmental interests. Only unjustified invasions of privacy by the government are actionable in [this type of] claim. That is, the constitution forbids governmental infringement on certain fundamental interests unless that infringement is sufficiently tailored to serve a compelling state interest. The District Court found that the School District’s policy served ‘a compelling state interest in not discriminating against transgender students’ and was narrowly tailored to that interest.”
In short, the stress felt by students due to transgendered students in their private facilities was not “comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity.” Thus the district had a “compelling state interest” in protecting transgender students over the privacy objections of the other students.
In Oregon, another court has ruled in a similar fashion in a case not only involving bathroom and locker rooms, but showers as well. In that case the district has a policy opening such rooms to transgender students, as the Obama Administration’s policy had directed. A group of parents filed suit against the district claiming that the policy caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress produced by using the restroom with students of the opposite sex. … and must risk exposing themselves to the opposite sex every time they use the restroom.”
Of course, that argument didn’t fly. “Recognition and acceptance of transgender people in various areas of society contradict plaintiffs’ asserted right of high school students not to share facilities with transgender students,” the court wrote, adding, “plaintiffs present the court with unpersuasive precedent that fails to establish their purported privacy right.”
It went on to say: “The court is persuaded by defendants’ authority and concludes that high school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs. The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation.”
Further, “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources. Such a [policy] would punish transgender students for their gender nonconformity and constitute a form of sex-stereotyping.” The open locker room and shower policy benefits all students by promoting acceptance, apparently.
And if you disagree: “It is within the parent plaintiffs’ right to remove their children from [the school] if they disapprove of transgender student access to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severally diminished.”
There’s one other case that might figure into this mix. Transgender student Gavin Grimm sued the Gloucester (Virginia) School District in a similar case. Lower courts had ruled in favor of Grimm and the case was appealed to the U.S. Supreme Court which accepted the case in October of 2016. But the court, then with only eight justices, simply vacated the lower court decision and denied a hearing to Grimm, which was a setback for the transgender rights supporters.
Since that time, President Trump has named a ninth justice and his nomination to replace the pro-LGBT rights Justice Anthony Kennedy is now pending. It will be only a matter of time before another such case is appealed to the Supreme Court. In the meantime, transgender supporters are doing their best to create havoc in the lower courts.
So when your 13-year-old daughter comes home and says, “Guess who I met in the shower after gym class?” — don’t even try to guess unless you are well sedated and free of any heart problems. Otherwise, wait for the next case that does make it to the judicial top; you might then get some relief. Or you might not.
(You can contact Mike at DeaconMike@q.com.)
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