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Lawyers for a transgender male student from Gloucester County, Va., are asking the U.S. Court of Appeals for the Fourth Circuit to stop the Gloucester County School Board from enforcing a policy that requires transgender students to use “alternative private” restroom facilities instead of the restroom that comports with their gender identity.
Gavin Grimm, now a junior at Gloucester High School, had previously sought a preliminary injunction that would allow him to use the boys’ restroom. But U.S. District Judge Robert Doumar rules against Grimm in two separate rulings, first rejecting part of Grimm’s lawsuit, G.G. v. Gloucester County School Board, claiming that the school board’s chosen policy violates Title IX of the Educational Amendments Act of 1972, and then later his request for the preliminary injunction. As a result, the American Civil Liberties Union and the ACLU of Virginia, which are representing Grimm, have asked the U.S. 4th Circuit Court of Appeals to reverse Doumar’s decision throwing out their claim under Title IX.
“This case is not about whether schools may provide separate restrooms for male and female students,” the ACLU’s appellate brief reads. “It is about how to provide transgender students with equal, nondiscriminatory access to those existing restrooms, as Title IX and the Fourteenth Amendment require. A preliminary injunction is necessary to stop the ongoing irreparable harm the Board has inflicted on G. by preventing him from using the same restrooms as other students and relegating him to separate, single-stall facilities.
“G. has established a likelihood of success on his Title IX claim,” the brief continues. “Title IX’s prohibition on discrimination “on the basis of sex” protects transgender students from discrimination based on their transgender status or gender nonconformity. Discrimination against transgender people is necessarily discrimination based on sex because it it impossible to treat people differently based on their transgender status without taking their sex into account. Requiring transgender students to use separate restrooms from other students violates Title IX by stigmatizing transgender students, depriving them of physical access to school resources, jeopardizing their health, and impairing their ability to participate equally in the educational benefits and opportunities of school.”
The ACLU’s argument is consistent with a statement of interest filed by the Department of Justice in federal court in response to Grimm’s lawsuit. In the statement of interest, the Justice Department argues that discrimination based on gender identity or gender nonconformity constitutes discrimination based on sex. Therefore, the statement says, denying Grimm access to the restroom matching his gender identity should also be prohibited by Title IX.
Grimm’s lawyers have also argued that the policy is discriminatory and unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, but Doumar has not yet ruled as to whether that claim can move forward.
“We hope and expect that the Fourth Circuit will reverse the lower court’s ruling and reaffirm that Title IX and the Constitution protect transgender students from being singled out for different treatment simply because of who they are,” Joshua Block, a senior staff attorney in the ACLU’s Lesbian, Gay, Bisexual, and Transgender Project, said in a statement. “School officials must treat all students equally and may not demean and stigmatize transgender students by relegating them to separate restrooms from their peers.”
Grimm issued his own statement expressing his distaste for what he calls the “day-to-day humiliation of being singled out” from other students due to his gender identity, but expressed hope that his legal fight would prevail.
“Even though this has been a long battle, I’m pushing forward because all transgender students in Virginia deserve to live fully as who they are,” he said in the statement.
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