Debunking the Fourth Circuit's Insane Transgender Ruling in Grimm v. Gloucester
On August 26, 2020 the U.S. Court of Appeals for the Fourth Circuit issued its decision in the case of Gavin Grimm v. Gloucester County School Board. The decision declared that rights of the plaintiff Gavin Grimm, a female student who considers herself male, were violated because the school board denied Grimm the right to access the boys' restroom and refused to amend school records to call her "male" after a court had ordered the state of Virginia to issue a new birth certificate indicating Grimm as a male. In justifying its opinion, the Court made many findings of fact (whether self-determined or sourced from friends of the court or the lower court) that not only defy common sense, but also are patently false or materially inaccurate. A few examples follow.
MENTAL DISORDER. The Court asserts at 7 that being transgender is not a psychiatric condition and "implies no impairment in judgment, stability, reliability, or general social or vocational capabilities." First, the Court's statement is inaccurate as to Grimm according to the American Psychiatric Association (APA) Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). The APA states that those distressed and impaired by their Gender Dysphoria (GD) meet the definition of a mental disorder. From the DSM-5 fact sheet Gender Dysphoria: "The critical element of Gender Dysphoria is the presence of clinically significant distress associated with the condition[.] ... This condition causes clinically significant distress or impairment in social, occupational or other important areas of functioning." Second, the Court at 16 admits that Grimm's psychologist has confirmed that Grimm has G.D. Third, the Court at 42 found, citing a law review article, that Gender Identity Disorder (GID) was de-pathologized in 2013. That statement appears willfully deceptive and misleading in that the APA merely changed the name of the disorder from GID to G.D. while clarifying that a disorder does not exist if there is no associated clinically significant distress. (The law review article clearly so indicates.)
One can thus conclude that Grimm and all who are significantly distressed because they are denied access to bathrooms and locker rooms designated for the opposite sex or because others refuse to refer to them using opposite-sex names or pronouns have a mental disorder per DSM-5.
CONSENSUS. The Court at 9 asserts that the 2012 World Professional Association for Transgender Health (WPATH) Standards of Care (SOC) represents the consensus approach of the medical and mental health community. This claim also appears clearly false. First, the WPATH SOC claims to express a consensus of only various so-called experts, not organizations of mental health practitioners, as to social transition of children. If there is any consensus, it is that there is substantial debate on the issue. The SOC at 17 provides that treatment recommendations of social transition of children, which includes use of opposite-sex bathrooms and changing of names and pronouns, "is a controversial issue, and divergent views are held by health professionals" and that the "current evidence base is insufficient to predict the long-term outcomes of completing a gender role transition during early childhood." Second, the 2012 Report of the APA Task Force on Treatment of Gender Identity Disorder (Report) at 4 acknowledges that there is no consensus regarding treatment of children with GID (now called G.D.), one reason being lack of randomized controlled treatment outcome studies and that "opinions vary widely among experts" as to treatments. The APA Report at 8 acknowledges that various organizations have recommended guidelines and standards of care, including the WPATH SOC; however, to the date of the report, "no professional organization of mental health practitioners provides such recommendations."
LIVING FULLY AS A BOY. The Court asserts at 5 that Grimm was living "fully" as a "boy." A child who does not have the genetic makeup of a male cannot be living "fully" as a boy. All a girl can do is impersonate a boy to a greater or lesser extent. A girl or boy can impersonate a member of the opposite sex but cannot and should not accurately or truthfully or morally be referred to as a person of the opposite sex. (See the reasons here and here.) It is pure speculation for a woman to think she knows how a man feels, thinks, or reacts physically or emotionally to various situations, stimuli, and events because no woman has ever had the nervous system, brain, or body of a man.
ALWAYS KNEW HE [sic] WAS A BOY. The Court asserts at 14 that Grimm always knew she was a boy. The truth is that Grimm did not always know any such thing. Such an assertion requires that at all times, Grimm both (1) knew what a boy is and (2) was able to make an informed judgement that she was a boy. Did Grimm always know what a prostate is and its function and what a male orgasm is and feels like? Did Grimm even always know what her own fallopian tubes are and their function or what a female orgasm is and feels like?
The American College of Pediatricians (ACP) states: "[S]cientists are confirming ... that the adolescent's brain is not fully mature until approximately 23–25 years of age." Further, the American Academy of Pediatrics (AAP) published an excerpt from a study that reported that children under the age of 14 are not cognitively capable of crossing a busy street "because children lack the perceptual judgment and physical skills needed to consistently get across safely." Recognition of this lack of judgement has caused legislators to deny underage children the right (and deny parents any right to authorize their children) to violate curfew; purchase firearms; engage in sexual intercourse; vote; sit as a juror in a court of law; operate a vehicle; and use alcohol, drugs, and tobacco.
DISCRETE GROUP WITH IMMUTABLE CHARACTERISTICS. The Court asserts at 44 that transgender people constitute a discrete group with immutable characteristics and at 69 that their self-conception is unshakeable. Those statements are false. (1) In the SOC at 12, WPATH states, "In most children, gender dysphoria will disappear before, or early in, puberty." (2) "Also, both the American Psychiatric Association (Diagnostic and Statistical Manual-Fifth Edition, p. 455) and the American Psychological Association (Bockting, 2014, APA Handbook, v. 1, p. 744) recognize transgender identity fluctuates, and the vast majority of gender dysphoric minors will eventually accept their chromosomal sex." (3) Even Harvard acknowledges that gender identity can and does change daily.
SEX ASSIGNED AT BIRTH. The Court asserts at 7 that there is a sex assigned at birth. An infant's sex is not "assigned" at birth; rather, sex declares itself biologically and anatomically in utero and is evident and merely recorded at birth. One's sex does not change. When a school board makes a rule as to which groups will access male and female bathrooms, it is only a reasonable and rational requirement that the determination be based upon a classification that is verifiable and doesn't change rather than upon a classification that is unverifiable and can and does change, even daily. Any law or rule not meeting those requirements would not be "rational" under any standard of scrutiny.
The Court's decision is predicated on false, misleading, and incomplete information and should be reversed or overruled.