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My name is David Fowler. I wanted to give you a quick understanding of some of the major issues associated with a decision that was just released by the 4th U.S. Circuit Court of Appeals dealing with the “bathroom bill” (HB 2414) issues and Title IX.

It’s the case of G.G. vs. Gloucester County School Systems, and it was a case in Virginia. The school system won their lawsuit originally, saying that Title IX allows for the segregation of bathrooms according to biological sex. The 4th Circuit Court of Appeals reversed that decision and sent it back to the trial court.

But you need to understand what the 4th Circuit did and how our courts are literally rewriting laws. To be honest, Congress is going to have to start doing something with judges who rewrite their laws.

So, follow along on this slideshow. It will give you a great picture of what the court has actually done and how they have rewritten the federal law.

How are we to understand this ruling on Title IX? We have to appreciate that Title IX says, “[n]o person . . . shall, on the basis of sex [sex being the key word] . . . be subjected to discrimination under any education program or activity receiving federal financial assistance.”

What does the word “sex” mean? There are only three choices based on the arguments being made: The word “sex” means male or female, it means instead gender identity, or it means male or female AND gender identity. What’s the problem here? Male or female is quite understandable and everybody knows what that means. If you go with the idea that the word “sex” means “gender identity,” look what the court has done. It has substituted a new word for the word “sex.” That is judicial rewriting of the law.

Let’s take a look at the possibility that what the court means is male or female AND gender identity. It has added a new term to go with the term “sex.” That, too, is the judicial rewriting of a statute. Now, here is the problem. It rewrites the law. When you begin to substitute words or add new words that’s judicial activism at its worst.

Let’s take a look at what the court also acknowledged: “The Department’s regulations implementing Title IX permit the provision of separate toilet, locker room, and shower facilities on the basis of sex . . .”

So going back to what we just said, if you eliminate the word “sex” and say that word really just means “gender identity,” now what do we have? We have a problem.

This particular court case was limited to a case involving the toilet, but the statute isn’t just limited to toilets that are separated by gender identity, but includes the notion of locker rooms and showers. So you can’t separate the word “gender identity” and say it only applies to toilets without saying it also applies to locker rooms and showers. That opens the door to the very kind of perversions that we have talked about in connection with House Bill 2414.

What’s next?

We understand there may be a request that the entire 4th Circuit hear the appeal rather than leave it with just these three judges who split on their decision. We won’t know about that for a while. But if the whole court hears the case, the whole court can change the outcome of the decision that was just issued.

What does this mean for Tennessee? What does it mean for our “bathroom bill”? Does it mean it was good that our “bathroom bill” did not pass? No, I don’t think that means that at all, because, really, here is the decision that our legislators must now face. We must either decide that we are going to live under the 4th Circuit’s ruling, assuming the ruling remains the same, or we are going to say, “no, we live in the 6th Circuit. We live in a different circuit; we are not governed by the 4th Circuit. And we are not going to allow the 4th Circuit to determine what we do in Tennessee in the 6th Circuit.”

We have the opportunity next year, I hope, to pass a law and say to our circuit, which is more conservative than the 4th Circuit, that our understanding of Title IX is actually correct.

By no means does this 4th Circuit decision mean that the issue is settled for Tennessee unless we are willing to live with a ruling from another circuit that is not binding on the state of Tennessee.