Transgender Bathroom Wars Reach U.S. Supreme Court

by | November 1, 2016 AT 12:45 PM

By Michael Doyle

A shorthanded Supreme Court on Friday entered the bathroom wars, as justices agreed to consider a transgender student's access rights.

Taking on a volatile social issue, the high court agreed to hear a challenge from a Virginia school board that wants to limit which bathroom a transgender teenager can use. Potentially, this could become the new term's blockbuster.

Gavin Grimm, the 17-year-old high school student identified in court documents as "G.G.," was born a biological female but identifies as a male and has been taking hormone therapy.

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

The Supreme Court's decision means the Gloucester County School Board and its many conservative allies persuaded at least four of the eight justices that their challenge deserved a full hearing.

The decision means, as well, that a nationwide standard could eventually guide political bodies that want to follow the Virginia school board's lead in restricting transgender bathroom access. The Obama administration earlier this year told school districts that such restrictions put them in jeopardy of losing federal funding under Title IX of the federal Education Amendments Act of 1972, which requires equal treatment for male and female students.

"Events have left Missouri public schools in limbo as to the current state of the law," a brief filed by Missouri Attorney General Chris Koster stated, adding that "administrators must have definitive guidance as to what the law requires of them in order to maintain federal funding."

The governors of North Carolina, where a state law governing transgender bathroom use has roiled the political scene all year, and Kentucky, as well as the attorneys general of 18 states _ including Georgia, Kansas, South Carolina and Texas _ had urged the Supreme Court to hear the Virginia case.

The court's acceptance of the school board's petition came despite the vacancy left by the February death of the late Justice Antonin Scalia and the refusal of Senate Republicans to consider a replacement.

To fill Scalia's seat, President Barack Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit on March 16. Until Friday, the justices had appeared to be avoiding incendiary issues while they await Scalia's replacement.

The Virginia case is rooted in Gavin Grimm's gender identity. He came out to his parents as a high school freshman, and his school principal subsequently allowed him to use the boys' restroom. During the subsequent litigation he allowed his full name to become public.

"He has a state ID identifying him as male, and, as a result of hormone therapy, has facial hair, a deep voice and other male secondary sex characteristics," G.G.'s attorneys stated in a brief. "In every aspect of life outside school, G. is recognized as a boy."

Nonetheless, the Gloucester board approved a districtwide policy prohibiting school administrators from allowing transgender students to use facilities consistent with their gender identity regardless of the individual circumstances.

"For decades our nation's schools have structured their facilities and programs around the idea that in certain intimate settings men and women may be separated to afford members of each sex privacy from the other sex," the school board's attorneys advised the court.

Grimm's family challenged the school board's policy, in part, as a violation of Title IX of the federal Education Amendments Act of 1972, which bans sex discrimination in education programs. A trial judge initially rejected that argument.

But in April, the 4th U.S. Circuit Court of Appeals reversed the trial judge and agreed with Grimm that the Obama administration had been reasonable in its interpretation that Title IX covered transgender individuals.

"In a case such as this," the appellate court concluded, "the weighing of privacy interests or safety concerns, fundamentally questions of policy, is a task committed to the agency, not to the courts."

Further complicating the issue, a Texas judge in August put on hold the Obama administration's policy that Title IX covers transgender students. That challenge is ongoing.

The Supreme Court earlier had stayed the appeals court ruling, preventing Grimm from using the school's boys' room, pending the litigation's outcome. The oral argument will be held next year _ potentially, when the court is back up to nine justices _ and a decision rendered by June 30.

"It is disappointing that Gavin will probably have to finish out his high school career under this harmful, humiliating policy," said Josh Block, senior staff attorney at the American Civil Liberties Union's LGBT project.

(c)2016 McClatchy Washington Bureau