Gavin Grimm, a transgender teen in Virginia, is continuing his fight to simply access the boys’ bathroom at Gloucester High School along with his male classmates. After a federal judge ruled in September against providing immediate injunctive relief to allow Grim to continue using the bathroom, the ACLU appealed to the Fourth Circuit. This week, leaders from six states filed an amicus brief arguing that transgender teens like Grimm should not be provided any accommodations based on their gender identity.
The brief, filed by the states of South Carolina, West Virginia, Arizona, and Mississippi along with the governors of Maine and North Carolina, stipulates that transgender people deserve no protections under Title IX’s restrictions on discrimination on the basis of sex. Relying on dictionary definitions, the states assert that “sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity.” Since Grimm was assigned the sex of female at birth, refusing him access to the boys’ restroom is not discrimination on the basis of sex because he’s being treated the same as all other “females.”
Though the brief asserts “there is no disagreement that G.G. is biologically of the female sex,” it remarkably avoids ever referring to Grimm with a pronoun, resulting in odd sounding paragraphs like this one:
Here, however, G.G. is treated no differently from any other girl on account of biological sex. G.G. is being excluded from the boys’ bathroom not because of any stereotype about how G.G. should look, act, or dress, nor because of G.G.’s gender identity, but simply because G.G. is not of the male sex. Regardless of gender identity, no female may use the boys’ restroom. G.G. lacks a male reproductive organ, and boys using urinals are not legally compelled to be in the presence of biological females when the boys must expose their male reproductive organs to urinate. That falls squarely within the regulatory safe harbor for single-sex bathrooms.
As the paragraph suggests, the states’ biggest objection to accommodating transgender students is “exposure.” Because he’s transmasculine, Grimm’s case does not neatly fit the Mike Huckabee line of thinking that boys will pretend they’re girls to try to ogle girls in the locker room. But the brief assumes boys are just as at risk of having their privacy somehow violated.
Grimm, who has been on hormone therapy that has deepened his voice and given him more masculine features, “disregards the feelings of and invasion of the privacy of the many more boys who would be forced to perform intimate bodily functions in the presence and possibly view of a biological female,” the states write. “There is no authority for twisting equal protection to force schools to ignore the biology of urination and the privacy of adolescent boys’ reproductive organs.”
Paying particularly disturbing attention to anatomy, the brief asserts several times that boys should have the right to expose “their male reproductive organs to use urinals out of the presence of females.”
In fact, the brief argues that hiding genitals from the other sex is the whole point of sex-segregated facilities, highlighting the existence of urinals as proof. “Requiring each sex to use its own restroom depends not on any inaccurate or degrading stereotypes about women’s inferiority, but on the basic biological differences between the sexes, such as boys’ exposure of their male reproductive organs to use urinals, out of the presence of females.”
Walt Heyer, The Federalist’s resident ex-trans writer who regularly opposes transgender equality, stated bluntly Wednesday what the states argue between the lines: that transgender teens are “sexual predators” engaging in “voyeurism.” Recalling his own teenage desire to change genders, Heyer clarifies, “But I never had any desire to expose myself to girls at school. That is just sick.”
According to Heyer, “It is sexual madness and social terrorism to deem the practices of sexual predators as acceptable and foist them on innocent children and adolescents.”
A significant flaw in these arguments — besides the ongoing demonization of transgender people as predators — is the assumption of uniform heterosexuality. If the goal is to ensure that people have access to bathrooms absent of anyone who might be inclined to ogle them, then all gay, lesbian, and bi people would also have to be prohibited from sex-segregated spaces. And those LGB people would then all have to use single use restrooms, because anyone with a same-sex orientation would have to be banned from using the restroom with someone of the same sex.
The states and governors make no argument that LGB people violate the privacy of restrooms.
Though Grimm has personally described being forced to use separate single-stall restrooms as “humiliating,” “ostracizing,” and a “walk of shame” that marks him as different at school and makes him uncomfortable, the states actually doubt the legitimacy of his claims. “Appellant’s subjective self-report of feeling stigmatized,” they write, “which the district court found appeared to have been drafted by appellant’s lawyers, cannot unilaterally invalidate a neutral, traditional restroom policy.”
North Carolina Gov. Pat McCrory (R) signed onto the brief on his own after Attorney General Roy Cooper refused to join on behalf of the state. In a statement Tuesday, McCrory insisted “the privacy and well-being of our students is paramount. Our local school districts and parents are best equipped to make decisions based on their own unique student populations.”