- The Washington Times - Tuesday, April 19, 2016

The 4th U.S. Circuit Court of Appeals tore a hole in North Carolina’s bathroom bill Tuesday, ruling in a separate Virginia case that public school students have a right to use the facilities of their self-identified gender, not necessarily their biological sex.

North Carolina Gov. Pat McCrory on Tuesday said he will respect the federal court ruling that applies directly to public schools while attorneys for the state figure out the details.

“As governor, I will uphold my oath of office and respect these court rulings, and make sure these court rulings are abided to, because I’ve sworn an oath to do just that and I have a tradition of doing just that,” Mr. McCrory said at a press conference after the ruling was handed down.

The Richmond-based appeals court ruled Tuesday that a Virginia school board violated the federal Title IX law by denying Gavin Grimm, a 16-year-old student who identifies as a boy, access to the male facilities. Title IX forbids institutions that receive federal education dollars from discriminating on the basis of sex and is best known as the law that boosted women’s sports in high schools and colleges.

The circuit court’s jurisdiction comprises Maryland, North Carolina, South Carolina, Virginia and West Virginia.

Mr. McCrory last month signed into law HB2, which prohibits people from using public facilities intended for the opposite sex. The law says public facilities such as bathrooms or showers should be segregated on the basis of biological sex, not gender identity.

The court decision does not totally strike down North Carolina’s bathroom bill, which also applies to facilities such as government buildings and public restrooms.

In addition, a clarification signed by Mr. McCrory this month makes it explicit that the bill does not apply to private enterprises, which can segregate their restrooms and gyms according to gender or sex, offer gender-neutral facilities or provide other accommodations.

However, if other federal courts or the Supreme Court understand “gender discrimination” as the 4th Circuit did — applying according to “gender identity” rather than “sex” — no part of the bathroom bill could survive given the numerous federal laws and court precedents against sex and gender discrimination in every field.

Gay rights groups praised the court ruling as “historic” and argued that it overturns the North Carolina law insofar as it applies to public schools.

“Today’s historic decision is not only a victory for Gavin, but for all transgender young people who are being targeted by discriminatory actions — including North Carolina Governor Pat McCrory’s anti-transgender HB2 law,” said a statement by Sarah Warbelow, legal director for the Human Rights Campaign.

“We therefore expect public schools, including those in North Carolina, to immediately comply, ensuring transgender students full protections under the law, which includes full access to the appropriate facilities,” she said.

Mr. McCrory said the circuit court ruling ushers in a “major, major change in social norms” and that he expects the decision will be appealed to the Supreme Court.

“It is my understanding that this ruling will most likely be immediately appealed to the U.S. Supreme Court; however, in the meantime, I’ve got to get an evaluation from our lawyers on — does this mean everyone has to go back, or initiate these new standards demanding that our public schools or high schools allow boys who have a gender identity of a girl be allowed to use a girls’ restroom, locker room or shower facility?” he said.

The 2-1 decision by the circuit court panel overturned a U.S. district court decision that Title IX bans discrimination according to sex, the actual word used in the law. Neither the word “gender” nor the term “gender identity” appears in the 37-word law.

The appeals panel also overturned the Gloucester County school board, which, in a 6-1 vote last year, denied the student’s request to use the facilities of the opposite sex.

After that decision, Gavin’s high school sought to accommodate the student by building several gender-neutral, single-stall restrooms accessible to all students. But the American Civil Liberties Union, which represents the teen, said students must be allowed to use the facilities that correspond with their gender identity.

“I feel so relieved and vindicated by the court’s ruling,” Gavin said in a statement released by the ACLU. “Today’s decision gives me hope that my fight will help other kids avoid discriminatory treatment at school.”

Matt Sharp, legal counsel for the Alliance Defending Freedom, which filed a friend-of-the-court brief in the case, called the outcome “disappointing.”

“Title IX, a federal law that this lawsuit cites in its attempt to overturn the school district’s policy, does just the opposite of what the ACLU is arguing: Title IX specifically authorizes schools to have separate restrooms and locker rooms for boys and girls,” Mr. Sharp said in a statement.

He said the school district’s policy of accommodating transgender students with separate facilities respected the rights of “students who aren’t comfortable using facilities designed for their biological sex without neglecting the established right of children to bodily privacy and safety.”

Several states have faced similar legal challenges from transgender students who want to use restrooms of the opposite sex.

In Colorado, for instance, 6-year-old Coy Mathis, who identifies as a girl, won an appeal to the state’s Civil Rights Division in 2013 after the first-grader’s school created several one-stall, gender-neutral restrooms as an accommodation.

But this is the first time a circuit court has weighed in on the issue.

In response to an emboldened gay rights movement, several states have considered preemptively enacting legislation barring people from using facilities of the opposite sex.

According to the National Conference of State Legislatures, 17 states this year have considered legislation that would restrict access to restrooms, locker rooms and other facilities on the basis of biological sex.

South Dakota Gov. Dennis Daugaard, a Republican, last month vetoed a bill that would have restricted use of public school facilities on the basis of biological sex — as well as require schools to make reasonable accommodations for nonconforming students.

Dozens of corporations, largely based in Silicon Valley and Hollywood, have threatened to curb their business activity in states that enact such measures.

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