Yesterday, with a Family Foundation staff member present to observe, the 4th Circuit Court of Appeals in Richmond heard oral arguments on a case which will determine whether local school boards have the authority to insist that a student use either the bathroom of his or her biological sex or an alternative private bathroom.

The ACLU recently sued the Gloucester County, VA School Board after it went out of its way to accommodate a biologically female “transgender” student by providing a separate bathroom for the student’s use. Incredibly, the ACLU interpreted this reasonable accommodation as a form of unlawful discrimination.  Representatives of the ACLU have called such an accommodation “dehumanizing.”

Despite the fact that the student (G.G.) is biologically and anatomically female and “presented” herself as a girl up until the 10th grade, G.G. and the ACLU say that should not matter. According to their oral argument to the 3-judge panel, a student should be able to enter a certain bathroom, locker room, or school shower with other children as long as he or she merely “identifies” as that sex. In other words, if a boy feels like he is a girl, then he is. If a girl feels like she is a boy, then she is. And, according to the ACLU, no school board under law is entitled to prevent that student’s access to all corresponding gender-specific rights and privileges, notwithstanding the many safety and privacy concerns of all the other children. 

Attorneys for the ACLU argued that not allowing a child to use the restroom or locker room on the opposite sex is discrimination under the 14th amendment to the Constitution, or Title IX, federal law that prohibits discrimination on the basis of sex in federally funded education programs.  However, no court to this point has ruled that “transgenderism/gender identity” falls under the definition of sex, or is a “suspect class” in need of special protection.  The problem is that the Obama administration has, not through regulation but through a non-binding “advisory letter,” claimed that gender identity is included in the definition of sex. 

To be clear, no court decision or law supports this radical departure from reality and good sense. But that hasn’t stopped the case from being made. Despite the district court’s ruling in favor of Gloucester County, it is still anyone’s guess what the 4th Circuit may decide. 

Because the Obama administration is bullying school boards into adopting policies that allow students to use the restroom/locker room of their choice or lose federal funds, many are struggling with a response.  Gloucester attempted to compassionately and logically address the issue.  Because of the confusion, we support legislation introduced in the General Assembly by Delegate Mark Cole (R-88, Fredericksburg) that would implement the Gloucester policy statewide.

As we have said all along, we can compassionately address the needs of kids struggling with sexual identity issues without putting the privacy rights of all other students at risk by putting them in vulnerable situations in restrooms and locker rooms. 

This case is one of many examples of how some are now trying to blur the lines between male and female and ignore science, biology and human DNA.  With any sense, the 4th Circuit will soon affirm the rights of school boards to distinguish between male and female and the privacy rights of all school children and protect our school children.