Court Overturns Virginia School's Transgender Bathroom Policy

by | April 20, 2016

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By Anne Blythe

A transgender teen persuaded the U.S. Fourth Circuit Court of Appeals that banning him from using the boys' bathroom at his high school in rural Virginia is a case that should be heard in court.

The 2-1 ruling, which came Tuesday afternoon, could shape the fight over House Bill 2 in North Carolina and have an impact on a lawsuit filed in March by two transgender people and a lesbian law professor.

North Carolina, like Virginia, is part of the Fourth Circuit.

The teenager who brought the case, Gavin Grimm, 16, and his attorneys argued before a U.S. Court of Appeals panel in January and adds clarity to how the appeals court plans to interpret the question of whether bathroom assignment should be based on the gender on a student's birth certificate or the gender with which a person identifies.

The federal Department of Education's Office of Civil Rights sent an opinion letter dated Jan. 7, 2015, that stated it was OK for schools to permit the provision "separate toilet, locker room, and shower facilities on the basis of sex" as long as the facilities provided for one gender were comparable to what was provided to the other. "When a school elects to separate or treat students differently on the basis of sex... a school generally must treat transgender students consistent with their gender identity.

"The Department's interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual's sex as male or female is to be generally determined by reference to the student's gender identity," Judge Henry Floyd wrote in Tuesday's majority opinion.

In reversing the lower court in Virginia, the 4th Circuit panel said the judge had used the wrong legal standard in denying the student a request to halt the bathroom ban while his case pended in court. Grimm, whose case has brought national attention to the LGBT fight over public restrooms, was born with female anatomy, according to his court filing, but came out to in high school as a transgender male.

The Tuesday ruling also reverses a lower court ruling in which a judge agreed to dismiss the Grimm case upon request from the Gloucester County, Va., school board.

The 4th Circuit is the highest court to consider a question about whether bathroom restrictions, such as those in North Carolina's controversial House Bill 2, constitute sex discrimination and a violation of Title IX, the federal law governing gender harassment and discrimination. The decision could have reach beyond Virginia.

In response, the American Civil Liberties Union, ACLU of North Carolina, and Lambda Legal released a joint statement shortly after the ruling.

"Today's ruling makes plain that North Carolina's House Bill 2 violates Title IX by discriminating against transgender students and forcing them to use the wrong restroom at school," the organizations stated. "This mean-spirited law not only encourages discrimination and endangers transgender students -- it puts at risk billions of dollars in federal funds that North Carolina receives for secondary and post-secondary schools. House Bill 2 exposes North Carolinians to discrimination and harm, is wreaking havoc on the state's economy and reputation, and now more than ever, places the state's federal education funding in jeopardy. We again call on Governor McCrory and the General Assembly to repeal House Bill 2 and replace it with full nondiscrimination protections for LGBT people."

Gov. Pat McCrory filed a so-called "friend of the court" brief in support of the bathroom ban in Virginia.

(c)2016 The News & Observer (Raleigh, N.C.)