Transgender Bathroom Case Will Get U.S. Supreme Court Review

  • School policy restricts boys’ restrooms to ‘biological’ males
  • Lower court ruled in favor of 17-year-old transgender student

A bathroom is seen at a coffee shop in Washington on May 5, 2016.

Photographer: MANDEL NGAN/AFP/Getty Images

The U.S. Supreme Court accepted a blockbuster case over transgender rights, agreeing to hear an appeal from a Virginia school board that wants to prevent a high school student from using the boys’ bathroom.

The justices will review a ruling that said the Gloucester County school board is probably violating federal civil rights law with a policy that reserves the boys’ restrooms for “biological” males.

The decision to take up the appeal is a setback for Gavin Grimm, a Gloucester High School senior who was born with female genitals but identifies as a boy. The Supreme Court in August temporarily blocked Gavin from using the boys’ bathroom, and today’s action extends that order until the court decides the case.

The dispute is the highest-profile case the court has accepted since Justice Antonin Scalia’s death in February. With Senate Republicans thwarting President Barack Obama’s efforts to fill the seat, the court remains shorthanded and susceptible to 4-4 splits.

‘Courtesy’ Vote

The case centers on U.S. Education Department regulations implementing Title IX, the 1972 federal civil rights law that bars discrimination in schools on the basis of sex. The regulations say schools can provide separate bathrooms and locker rooms “on the basis of sex.”

In January 2015, the department applied those regulations to transgender students for the first time and said schools needed to treat those students in accordance with their gender identity. In siding with Gavin on a 2-1 vote, a federal appeals court said it would defer to the Education Department’s interpretation.

Gloucester County officials argued in the county’s appeal that the lower court ruling upended a decades-old understanding that schools could have separate restrooms based on physiological gender.

“No one ever thought this was discriminatory or illegal,” the school board argued.

Gavin, now 17, came out as transgender to his parents during his freshman year and has been attending school as a male since he was a sophomore. His lawyers said in court papers that he’s legally changed his name, has a state identification card identifying him as male, and has facial hair and a deep voice as a result of hormone therapy. He says he always uses boys’ or men’s restrooms elsewhere.

‘A Normal Child’

The school, located about 50 miles (80 kilometers) north of Norfolk, let Gavin use the boys’ restroom for several weeks in 2014 before the school board intervened and voted to change the policy.

Since then, Gavin has generally used the nurse’s restroom, though the school has since installed three single-user bathrooms. His case involves only bathrooms, not locker rooms.

“I feel the humiliation every time I need to use the restroom and every minute I try to ‘hold it’ in the hopes of avoiding the long walk to the nurse’s office,” Gavin wrote in an opinion column in Friday’s Washington Post, published before the court granted review.

Legal fights over transgender rights are brewing around the country. Since the appeals court ruling, the Obama administration has gone further and directed every public school in the country to let transgender students use bathrooms and locker rooms based on their gender identity. The administration also has sued North Carolina over a state law regulating the public bathroom use of transgender people.

The court’s August order that temporarily blocked Gavin from using the boys’ restroom came on a 5-3 vote, with Justice Stephen Breyer joining the court’s four most conservative members in the majority. Breyer said he cast that vote as a “courtesy” that would “preserve the status quo” until the court decided whether to take up the case.

The case is Gloucester School Board v. G.G., 16-273.

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