9th Circuit Goes Transformational

The Fifth Circuit opinion by Judge Duncan was notable for the fact that it went out of its way to address the issue. It didn’t need to be done, but it was, almost as if it were an opinion in search of a case in which to issue it. But the contrast to the Ninth Circuit’s opinion in Parents For Privacy v. Barr could not be more stark.

The panel affirmed the district court’s dismissal of an action alleging that an Oregon public school district violated Title IX, as well as the constitutional rights of students and of parents, when it allowed transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth.

No footnote dropped. No explanation needed. The transgender student identified as male and was referred to as “he” throughout. But what was even more curious a commitment was that the court refused to thread the needle of gender by finding that the student was born a female, whether by genitalia or genetics.

As noted in the summary, and repeated in Judge A. Wallace Tashima’s opinion, sex was characterized as “the biological sex they were assigned at birth.” Apparently, calling it “biological sex” was insufficient explanation, and so “assigned at birth” was included to clarify that sex is a social construct and, implicitly, the obstetrician who made the assignment was part of a social conspiracy to misidentify the student.

The issue raised comes at the problem from the opposite side than earlier transgender decisions such as Grimm, where the suit was initiated by the parents of the student to compel the school board to provide the accommodation sought. Here, the school board instituted a “Student Safety Plan,” itself a curious framing of the issue, and parents of students who were not transgender sought to prevent the school from allowing the transgender student to use the bathrooms, locker rooms and showers of choice. The court wasn’t buying.

When parents and other students in the Dallas community became aware of the Student Safety Plan, many opposed it publicly at successive school board meetings, in an effort to dissuade the District from implementing the policy. Some parents in the District are concerned and anxious about the prospect of their children using locker rooms or bathrooms together with a student who was assigned the opposite biological sex at birth. The Student Safety Plan also interferes with some parents’ preferred moral and/or religious teaching of their children concerning modesty and nudity. In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom. Girls had the option of changing in the nurse’s office, but it was on the other side of the school.

Notably, Judge Tashima not only refers to the transgender student’s biological sex as assigned at birth, but girls who were not transgender as being “cisgender.” Judge Tashima faces the problem in the last sentence above, that “girls had the option of changing in the nurse’s office.” This involved high school students, some of whom were sensitive about their nude bodies being seen by a person with different genitalia than theirs, assigned at birth. While the specific case directly impacted boys, it could just as easily impact girls.

Whether you think high school gym showers aren’t a big deal doesn’t resolve the question. Some students felt so, as did their parents who were of the view that the determination of whether their children should be exposed to unfamiliar genitalia, and have their genitalia exposed in return, was their choice, not the school’s. The court said no.

Plaintiffs allege that the Student Safety Plan violates Title IX because it “produces unwelcome sexual harassment and create[s] a hostile environment on the basis of sex.” They allege that the
Plan “needlessly subjects Student Plaintiffs to the risk that their partially or fully unclothed bodies will be exposed to students of the opposite sex and that they will be exposed to opposite-sex nudity, causing the Student Plaintiffs to experience embarrassment, humiliation, anxiety, intimidation, fear, apprehension, stress, degradation, and loss of dignity.”


But just because Title IX authorizes sex-segregated facilities does not mean that they are required, let alone that they must be segregated based only on biological sex and cannot accommodate gender identity. Nowhere does the statute explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity.

Part of this holding can be explained by the nature of the action, that the burden of proof fell on the students and parents opposing the district. But the court’s reading of Title IX begs the question, as the authorization for sex-segregated facilities was written at a time when sex was understood to be binary, and there was no reason to include that they can be required for the bodily dignity of a student or that segregation was based “only on biological sex.” The notion of gender identity was foreign to Congress at the time.

The decision reflects a choice, that the interests of the transgender student and the interests of the “cisgender” students are in direct conflict. The boys and girls have as much right to not be compelled to experience “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, stress, degradation, and loss of dignity” as the transgender student. They are as entitled to use the normal, available and convenient facilities as the transgender student. You may think them wrong, childish or foolish, but people feel as they feel, much as someone might feel unsafe at hearing a word they’re informed is problematic.

The question has never been whether transgender students exist, as they obviously do. The question is how to accommodate their needs and desires while simultaneously accommodating the needs and desires of “cisgender” students. No one deserves to be forced  into a “loss of dignity” for the sake of ideology, and these are the sorts of questions that are inherently wrong for courts to answer. And yet, the conflicting opinions just keep coming.

14 thoughts on “9th Circuit Goes Transformational

  1. B. McLeod

    The conflicting opinions keep coming because people keep trying to use the schools and the courts as platforms to impose their “truths” on others, and the courts aren’t smart enough to rule that this isn’t their business.

    1. SHG Post author

      Nobody confirms judges to be moral arbiters. There is a legitimate public policy question at issue here. There is a body in our government whose job it is to decide public policy questions. It ain’t the courts. Judicial modesty is not what it used to be.

  2. John Barlercorn

    Damn esteemed one, and here I thought another brownsugar crystal, or renagade stray wheat seed in your oatmeal had instantily metabolize into a uniquely new phrase again?!

    Pretty close though as there are only 351 hits on “unfamiliar genitialia. AND SJ lands higher up in the search results at number two, than a reddit link from 29 minuites ago….so you can put that in your scrap book now too. 😉

    Well Done!

    1. SHG Post author

      You knew I was going to trash the rest of your comment, right? I really hate when people bring up the anomaly of “ambiguous genitalia,” which is like arguing that some people are born without arms so shirts are discriminatory and stigmatizing. Tails don’t wag dogs.

      1. John Barleycorn

        It is a little more complex than that…. and I see your point. I wasn’t trying to mess with you but you gotta admit that line:

        “Sometimes gender assignment can be complex and the long-term impact can be difficult to predict.”

        from that Mayo Clinic link does raise some interesting thoughts.

        Brain chemistry is…and just how it really works isn’t exactly nailed down yet.

        Besides I was really wanting to go with the huge ass cock up the skirt political cartoon by Mr. Fish again, but I haven’t been able to sneak that one by you affirmative consent filter yet…. and I never try more than three times.

        I am man of principle you know….

        For what it is worth I think society best keep a very close eye on the brain chemistry/biology lab rats as well as the newly minted “data scientists” and AI wizards as the Dr.’s and your broader guild have fucked things up enough already…

        In the end, knock on wood…we could be stuck inside of Mobile with the
        Memphis blues again. Not that it may matter as the post office has been stolen
        and the mailbox is locked…

        1. SHG Post author

          Of course it’s complex, but we can spend our time obsessed with the issues of the 00.01% because they’re the outlier, or the 99.99% because they’re most of us.

          And no, I’m not letting you post it.

        1. B. McLeod

          That can be fairly risky. I “called” a Labrador Retriever once, and it turned out the sneaky rascal was sitting on a full house, aces over queens.

  3. JAJ

    The balancing just doesn’t really seem all that different between discrimination and people with various problems concerning who is in their bathroom in this circumstance.

    “Loss of dignity”, “my personal beliefs” and “feeling of danger” not rooted in actual crime stats should not impose a duty on other people to avoid offense by their mere presence. All those were brought in as excuses for race segregated bathrooms over the ideology of integration, and the balancing test ought not to be any different here.

    It’s a value judgement that their feelings are more worthy than mostly similar feelings formerly widely held concerning race. If we’re going to accept gender identity as a protected class, or at least optionally protectable by local or state government, some people’s feels aren’t good enough to tell that class their simple presence is unacceptable.

    If we’re going to accept these kind of feelings as a valid reason to restrict the rights of others, it undermines your frequent rejection of the concept as applied to other topics. Should nobody be forced into a loss of dignity by hearing mean words, and the speaker required to say them somewhere else rather than the offended person being the one to leave?

    1. SHG Post author

      That’s a fair point, but the wrong analysis. It is a value judgment, and that value judgment in the case of race was made by Congress. Whether white people showering with black people is the same as teenagers with vaginas showering with teenagers with penises is a different value judgment. Maybe Congress will make the same decision, but it’s theirs to make.

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