North Carolina Gov. Pat McCrory and Maine Gov. Paul LePage signed onto the brief that South Carolina Attorney General Alan Wilson’s office submitted to the 4th U.S. Circuit Court of Appeals in Richmond, Va. West Virginia Attorney General Patrick Morrisey, Mississippi Attorney General Jim Hood and Arizona Attorney General Mark Brnovich are also signatories.
The officials argue the Gloucester County School District policy — which requires students to use restrooms and locker rooms that correspond to their “biological gender” — does not violate Title IX of the U.S. Education Amendments of 1972 that prohibits schools receiving federal funds from discriminating on the basis of sex. They also conclude the U.S. Department of Education’s “interpretation” of the regulation is “contrary to Title IX.”
“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,” reads the brief. “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.”
North Carolina Attorney General Roy Cooper did not sign onto the brief.
“Since Attorney General Cooper won’t protect North Carolina and challenge the ACLU/Obama administration’s overreach into our local school districts, I will,” wrote McCrory on his Facebook page on Nov. 24. “He trusts Washington, D.C., I trust North Carolina parents.”
The Gloucester County School Board in December 2014 approved the policy. The American Civil Liberties Union and the ACLU of Virginia last June filed a federal lawsuit on behalf of Gavin Grimm who claims it violates Title IX and the 14th Amendment’s Equal Protection Clause.
U.S. District Judge Robert G. Doumar in July said the policy does not violate Title IX. He ruled a few weeks later that Grimm cannot use the boys restroom during the current academic year as his case proceeds.
Grimm in October asked the 4th Circuit to block the school district from enforcing the policy.
“This court should hesitate long before becoming the first court ever, anywhere in the United States, to force schools to admit adolescent biological females into boys’ bathrooms and locker rooms, and adolescent biological males into girls’ bathrooms and locker rooms,” reads the officials’ brief. “If such a social revolution is to be wrought, it must come from the democratically elected legislature, not the courts or the executive.”
The Alliance Defending Freedom on Monday also filed a brief with the 4th Circuit on behalf of the Family Foundation of Virginia.
The anti-LGBT legal group, which has an office in D.C., represented Prince William County Circuit Court Clerk Michèle McQuigg, a defendant in the Bostic case that challenged Virginia’s same-sex marriage ban.
Gays and lesbians began to legally marry in the commonwealth in Oct. 2014 after the U.S. Supreme Court declined to hear the lawsuit.