Heather Clark – August 27, 2020
RICHMOND, Va. — A 2-1 panel with the Fourth Circuit Court of Appeals has again ruled that a Virginia school district discriminated against a female student who identifies as male by declining to allow her to use the boys’ restroom.
“[W]e hold that the board’s restroom policy constitutes sex-based discrimination and, independently, that transgender persons constitute a quasi-suspect class,” wrote Judge Henry Floyd, appointed to the bench by then-President Barack Obama.
He stated that “[n]o one questions that students have a privacy interest in their body when they go to the bathroom,” but the school district “ignores the reality of how a transgender child uses the bathroom: ‘by entering a stall and closing the door.’” Further, those with gender identity issues do not present a “peeping tom” threat as they will “mind[] their business like any other student.”
“Put another way, the record demonstrates that bodily privacy of cisgender boys using the boys restrooms did not increase when Grimm was banned from those restrooms,” Floyd said. “Therefore, the board’s policy was not substantially related to its purported goal.”
He also opined in his ruling that “[j]ust like being cisgender, being transgender is natural and is not a choice.”
Floyd asserted that transgenderism is “not a psychiatric condition,” but simultaneously stated that those who struggle with their gender “are up to three times more likely to report or be diagnosed with a mental health disorder as the general population” and noted that “[g]ender dysphoria is defined in the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders.”
Floyd was joined in his opinion by Judge James Wynn, Jr., also an Obama nominee. Judge Paul Niemeyer, nominated by then-President George H.W. Bush, dissented.