A conservative legal group is asking a federal court to strike down a North Carolina school district’s policy of allowing biological males in girls’ bathrooms as a violation of Title IX by citing a recent Supreme Court ruling regarding women’s sports.
America First Legal asked a judge on the U.S. District Court for the Middle District of North Carolina to issue a preliminary injunction barring the Cabarrus County School Board from enforcing a policy that allows biological males to use girls’ bathrooms and locker rooms, arguing it is “unlawful sex discrimination.”
The legal group is backing the lawsuit brought by three 17-year-old female students at Cox Mill High School who said they heard of biologically male students accessing the girls’ bathroom and that the school did nothing to stop it. One of the female students, identified in court documents as Mary Doe, said the principal offered to let her use a staff restroom instead of barring biological males from the girls’ bathrooms. The motion for an injunction claims that by allowing biological males to use women’s restrooms and not providing women a sex-separated facility, the school district is violating Title IX and the equal protection clause of the 14th Amendment.
“Plaintiffs—biological females who identify as female—must make a choice: either abandon their interest in privacy and modesty so that they can remain with their female classmates in the common female facilities, or leave those common facilities to use a not-comparable facility separate from their female classmates,” America First Legal said in its court filing. “The biological male student, meanwhile, is faced with no such choice. Worse yet, that biological male student has the option of using either the common male facilities or the common female facilities.
“The biological male student is never faced with the dilemma forced upon the biological female student. By permitting biological males to use female-designated restrooms, locker rooms, and changing areas, Defendants have excluded Plaintiffs from participation in, denied them the benefits of, and subjected them to discrimination under Defendants’ education programs and activities.”
The court filing is one of the first examples of a plaintiff using the Supreme Court’s June ruling in West Virginia v. B.P.J., which upheld state laws in Idaho and West Virginia barring biological males from women’s sports, to assert that the term “sex” in Title IX means biological sex.
“Title IX prohibits discrimination on the basis of sex,’” Justice Brett Kavanaugh wrote for the 6-3 majority in the Supreme Court’s B.P.J. ruling. “Title IX’s implementing regulations expressly permit schools to maintain separate teams for ‘members of each sex. The term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context.”
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While the justices said the B.P.J. ruling itself was narrowly tailored to the question of whether states could limit women’s sports to biological women, the majority ruling did push forward the idea that Title IX refers to biological sex, rather than gender identity. AFL is hoping the federal court will block the North Carolina school’s policy as schools across the country prepare to return from summer vacation over the coming month.
“Cabarrus County Schools has placed the burden on female students to leave their own facilities while biological males continue using them,” AFL senior counsel Ian Prior said in a statement. “Title IX, the Equal Protection Clause, and the North Carolina Constitution do not require schools to erase sex-based protections that have existed for generations. We are asking the Court to restore those protections immediately so these girls can attend school without being discriminated against on the basis of sex and compromising their modesty or well-being.”