Transgender Bathroom Policy Fight Heads to Supreme Court

A sign protesting a North Carolina law restricting transgender bathroom access is seen in the bathroom stalls at the 21C Museum Hotel in Durham, North Carolina, on May 3, 2016. The Obama administration used guidance memos last year to force schools to allow transgender students to utilize the bathroom of their choice. Reuters

The U.S. Supreme Court on Friday agreed for the first time to rule on transgender rights in a case in which a Virginia public school district is fighting to prevent a female-born transgender high school student from using the boys' bathroom.

The justices agreed to hear the Gloucester County School Board's appeal of a lower court's April 19 ruling that transgender students are protected under U.S. laws barring sex-based discrimination. The case involves a 17-year-old transgender student named Gavin Grimm, who identifies as male and sued in 2015 to win the right to use the school's boys' bathroom.

The case, to be argued and decided before the end of June, will be one of the biggest of the court's term.

"I never thought that my restroom use would ever turn into any kind of national debate. The only thing I ever asked for was the right to be treated like everyone else," Grimm said in a statement.

The court's decision to take the case means Grimm will not be able to use the boys' bathroom before graduating from high school next year, said Josh Block, his lawyer at the American Civil Liberties Union.

"These sorts of discriminatory policies stigmatize and isolate transgender students like Gavin just because of who they are," Block added.


The school board's chairman, Troy Anderson, welcomed the court's decision to hear the case, saying the board's policy "carefully balances the interests of all students and parents."

Conservative groups have backed the school board, saying the fight is about student privacy rights.

"In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls' facilities, or a female to the boys' facilities," said Gary McCaleb, a lawyer with the Alliance Defending Freedom, a conservative Christian legal group.

At the heart of the case is the question of whether transgender people are covered by a ban on gender discrimination in education under federal law.

President Barack Obama's administration concluded that they are, but there is a legal fight over whether judges are required to defer to the government's view. The justices could side-step a major ruling by focusing their decision on whether the administration followed the correct procedure when it gave public notice about that legal conclusion.

The court remains one justice short following the February death of Antonin Scalia, which left it with four conservatives and four liberals. That raises the possibility of a 4-4 ruling that would leave in place the decision favoring Grimm by the Richmond-based 4th U.S. Circuit Court of Appeals. A 4-4 ruling would set no nationwide legal precedent.

The court until now had generally steered clear of taking potentially divisive cases while it remained shorthanded.

The Supreme Court has not directly ruled on transgender rights before. But in 1994 the court did rule in favor of a male-born transgender prison inmate identifying as a woman who was held with male prisoners and said she was beaten and raped by another inmate.

Whether to allow transgender people to use public bathrooms that correspond to their gender identity rather than their birth gender has become the latest flashpoint in the long U.S. battle over lesbian, gay, bisexual and transgender rights. In a major gay rights ruling in 2015, the Supreme Court legalized same-sex marriage nationwide.

The transgender fight heated up after North Carolina passed a Republican-backed law in March that required people to use bathrooms that corresponded to their gender at birth in government buildings and public schools. The North Carolina law, being challenged in court, also blocked local measures protecting lesbian, gay, bisexual and transgender people from discrimination.

The Obama administration in May issued nationwide guidance telling public schools that transgender students should be allowed to use the bathroom of their choice.

That guidance infuriated many conservatives and prompted a Republican-led legal effort to fight it. Twenty-three states sued to block the guidance. A U.S. district court judge on Aug. 22 issued a nationwide injunction sought by Texas and other states preventing the administration from enforcing the guidance.

In the Virginia case, the Supreme Court in July voted 5-3 to temporarily block the appeals court decision from going into effect while the litigation continued, a move that prevented Grimm from using the boys' bathroom when the new school year began in September.

Grimm began attending school as a boy in September 2014. With the school's permission, Grimm used the boys' bathroom for about seven weeks without incident. But after complaints from parents, the county school board adopted a new policy in December 2014 that required students to use the bathroom that corresponded with their gender at birth.

Since then, Grimm has had to use a separate bathroom.

As a result of hormone therapy, Grimm has facial hair and a deep voice. Grimm has also had chest reconstruction surgery but not sex reassignment surgery.


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