Transgender bathroom panic has made it all the way to federal courts. A federal judge in Virginia has partly rejected efforts by the American Civil Liberties Union (ACLU), efforts bolstered by the position of the Department of Justice, to contest a public school's bathroom policies as a violation of federal sex discrimination laws.
I say "partly rejected" because the case can move forward as an equal protection case. But the judge, Robert Doumar, senior judge for the United States District Court for the Eastern District of Virginia, said earlier this week he would not entertain the argument that refusing to allow a transgender student to use the bathroom of his or her chosen sex rather than birth sex was a violation of sex discrimination bans of Title IX of the Education Act of 1972.
The student, Gavin Grimm, born as genetic female but now living as male, has sued for the right to use the boys' restrooms at Gloucester High School in Virginia. The school board had set up rules requiring students use the bathrooms of their birth sex but also provided three unisex bathrooms for transgender students or others who wanted them. That accommodation was not enough for Grimm.
As BuzzFeed explains, Doumar wouldn't even entertain the Title IX argument. He just abruptly threw it out of the case:
Your case in Title IX is gone, by the way," he told ACLU staff attorney Joshua Block, who argued on Grimm's behalf. "I have chosen to dismiss Title IX. I decided that before we started."
The announcement was unexpected not only because it diverges from the recent legal trend on the question of whether sex discrimination bans include anti-transgender discrimination, but also because a lawyer for the U.S. Department of Justice who had come to argue in Grimm's favor on the Title IX question had not yet been given a chance to speak.
The "legal trend" BuzzFeed is likely referring to is the Equal Employment Opportunity Commission and the DOJ deciding that the sex discrimination prohibitions of the Civil Rights Act of 1964 protects against transgender workplace discrimination (I've written about that here). This is a different law, and Doumar argued that Title IX allows for schools to segregate bathrooms and locker rooms, so therefore they could do the same to students on the basis of their birth sex.
I am uncertain of the logic of that argument, but it possibly doesn't matter. The comments from Doumar, a Reagan appointee who is now 85 years old, make him sound like an Aaron Sorkin-written parody of an embittered social conservative. Again from BuzzFeed:
On Monday, Doumar repeatedly interrupted lawyers and waxed on tangents about his frustrations with how the United States is changing. "Where the U.S is going scares me," he said. "It really scares me."
When the federal government's lawyer was asked to answer questions toward the end of the hearing, Doumar patronized the Department of Justice for enforcing marijuana prohibition in some states while allowing other states to tax and regulate pot, filing a brief in another unspecific case without pursuing a penalty, and other perceived shortcomings.
"I am sorry for the Department of Justice," he said. "Sanctuary cities. Where are we going?"
More from Reason and transgender bathroom panics here.