The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A month and a half ago, a three-judge Fourth Circuit panel held, by a 2-to-1 vote, that schools must let students use the restroom that corresponds to their gender identity and may not limit students to using the restroom that corresponds to their biological sex. Yesterday, the Fourth Circuit declined to rehear the case en banc, i.e., in front of the entire Fourth Circuit; Judge Niemeyer, the panel dissenter, wrote a short further dissent, which I pass along below (some paragraph breaks added); for more details on his position, and the contrary position, see the original panel opinion:
Bodily privacy is historically one of the most basic elements of human dignity and individual freedom. And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom. Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons? And do parents not universally find it offensive to think of having their children's bodies exposed to persons of the opposite biological sex?
Somehow, all of this is lost in the current Administration's service of the politically correct acceptance of gender identification as the meaning of "sex"—indeed, even when the statutory text of Title IX provides no basis for the position. The Department of Education and the Justice Department, in a circular maneuver, now rely on the majority's opinion to mandate application of their position across the country, while the majority's opinion had relied solely on the Department of Education's earlier unprecedented position.
The majority and the Administration—novelly and without congressional authorization—conclude that despite Congress's unambiguous authorization in Title IX to provide for the separation of restrooms, showers, locker rooms, and dorms on the basis of sex, see 20 U.S.C. § 1686; 34 C.F.R. §§ 106.32, 106.33, they can override these provisions by redefining sex to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy. Virtually every civilization's norms on this issue stand in protest.
These longstanding norms are not a protest against persons who identify with a gender different from their biological sex. To the contrary, schools and the courts must, with care, seek to understand their condition and address it in permissible ways that are as helpful as possible in the circumstances.
But that is not to say that, to do so, we must bring down all protections of bodily privacy that are inherent in individual human dignity and freedom. Nor must we reject separation-of-powers principles designed to safeguard Congress's policymaking role and the States' traditional powers.
While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court's controlling construction of Title IX for national application. And the facts of this case, in particular, are especially "clean," such as to enable the Court to address the issue without the distraction of subservient issues.
For this reason only and not because the issue is not sufficiently weighty for our en banc court, I am not requesting a poll on the petition for rehearing en banc. I do, however, vote to grant panel rehearing, which I recognize can only be symbolic in view of the majority's approach, which deferred to the Administration's novel position with a questionable application of Auer v. Robbins, 519 U.S. 452 (1997). Time is of the essence, and I can only urge the parties to seek Supreme Court review.
Thanks to How Appealing for the pointer.