Contributor, The Volokh Conspiracy

A gender neutral restroom at the University of Vermont in Burlington, Vt. (Toby Talbot/Associated Press)

In today’s G.G. v. Gloucester County School Board, the U.S. Court of Appeals for the 4th Circuit held 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.

The court didn’t hold that this is required by the Constitution, but rather deferred to the Education Department’s interpretation of the department’s regulation on the subject. (The regulation, which interprets the federal Title IX provisions, and which generally forbids sex discrimination but allows sex-segregated restrooms, applies to any schools that get federal funds.) The court also held that the high school’s proposed accommodation of G.G., which would have allowed G.G. (as well as other students) to use three single-stall unisex restrooms that it created, was inadequate, because it still barred G.G. from using the ordinary multi-stall boys’ restrooms.

G.G. is biologically female, and has not had gender reassignment surgery, but identifies as male; G.G. would thus be able to use the boys’ high school restroom. But under this holding, a biologically male student who identifies as female would be equally allowed to use the girls’ restroom.

The court didn’t squarely consider the argument that this would undermine the constitutional privacy rights of other students; some courts have said that there is a constitutional right not to be seen when undressed by members of the opposite sex.

We agree that “an individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts” are not involuntarily exposed. It is not apparent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department’s interpretation of its own regulations.

[Footnote moved: We doubt that G.G.’s use of the communal restroom of his choice threatens the type of constitutional abuses present in the cases cited by the dissent. For example, G.G.’s use — or for that matter any individual’s appropriate use — of a restroom will not involve the type of intrusion present in Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (involving the videotaping of students dressing and undressing in school locker rooms), Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (involving the indiscriminate strip searching of twenty male and five female students), or Supelveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (involving a male parole officer forcibly entering a bathroom stall with a female parolee to supervise the provision of a urine sample).] …

In a case such as this, where there is no constitutional challenge to the regulation or agency interpretation, the weighing of privacy interests or safety concerns — fundamentally questions of policy — is a task committed to the agency, not to the courts.

[Footnote moved: The dissent accepts the Board’s invocation of amorphous safety concerns as a reason for refusing deference to the Department’s interpretation. We note that the record is devoid of any evidence tending to show that G.G.’s use of the boys’ restroom creates a safety issue. We also note that the Board has been, perhaps deliberately, vague as to the nature of the safety concerns it has — whether it fears that it cannot ensure G.G.’s safety while in the restroom or whether it fears G.G. himself is a threat to the safety of others in the restroom. We are unconvinced of the existence of danger caused by “sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.” The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the “sexual responses prompted” by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.]

The concurring opinion noted that:

[S]tudents’ unintentional exposure of their genitals to others using the restroom has already been largely, if not entirely, remedied by the alterations to the school’s restrooms already undertaken by the Board. To the extent that a student simply objects to using the restroom in the presence of a transgender student even where there is no possibility that either student’s genitals will be exposed, all students have access to the single-stall restrooms. For other students, using the single-stall restrooms carries no stigma whatsoever, whereas for G.G., using those same restrooms is tantamount to humiliation and a continuing mark of difference among his fellow students. The minimal or non-existent hardship to other students of using the single-stall restrooms if they object to G.G.’s presence in the communal restroom thus does not tip the scale in the Board’s favor

The court thus seems to be leaving open the possibility that there might be a different result if a constitutional challenge is brought, especially if it is brought as to some place where people do routinely see each other naked (e.g., communal shower rooms) more than they do in restrooms.

Judge Niemeyer dissented in relevant part, arguing that the Education Department’s interpretation of its regulation was unreasonable; and he also stressed what he saw as privacy and safety concerns. All three opinions are long, so I can offer only brief excerpts, but here are a few:

This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. And, unwittingly, it also tramples on the very concerns expressed by G.G., who said that he should not be forced to go to the girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms. Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a result, schools would no longer be able to protect physiological privacy as between students of the opposite biological sex….

An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind. See, e.g., Doe v. Luzerne Cnty., 660 F.3d 169, 176-77 (3d Cir. 2011) (recognizing that an individual has “a constitutionally protected privacy interest in his or her partially clothed body” and that this “reasonable expectation of privacy” exists “particularly while in the presence of members of the opposite sex”); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (explaining that “the constitutional right to privacy … includes the right to shield one’s body from exposure to viewing by the opposite sex”); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course have a significant privacy interest in their unclothed bodies”); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (explaining that “[t]he right to bodily privacy is fundamental” and that “common sense, decency, and [state] regulations” require recognizing it in a parolee’s right not to be observed by an officer of the opposite sex while producing a urine sample); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1989) (recognizing that, even though inmates in prison “surrender many rights of privacy,” their “special sense of privacy in their genitals” should not be violated through exposure unless “reasonably necessary” and explaining that the “involuntary exposure of [genitals] in the presence of people of the other sex may be especially demeaning and humiliating”).

Moreover, we have explained that separating restrooms based on “acknowledged differences” between the biological sexes serves to protect this important privacy interest. See Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (noting “society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns”). Indeed, the Supreme Court recognized, when ordering an all-male Virginia college to admit female students, that such a remedy “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).

A biological male identifying as female could hardly live in a girls’ dorm or shower in a girls’ shower without invading physiological privacy needs, and the same would hold true for a biological female identifying as male in a boys’ dorm or shower. G.G.’s answer, of course, is that he is not challenging the separation, on the basis of sex, of living facilities, locker rooms, and shower facilities, but only of restrooms, where the risks to privacy and safety are far reduced. This effort to limit the scope of the issue apparently sways the majority, as it cabins its entire discussion to “restroom access by transgender individuals.” But this effort to restrict the effect of G.G.’s argument hardly matters when the term “sex” would have to be applied uniformly throughout the statute and regulations, as noted above and, indeed, as agreed to by the majority.