A parent holds up a sign opposing Policy 1450, which adds gender identity to Fairfax County Public Schools’ nondiscrimination policy.
Amanda Maddox was horrified to learn that her daughter was using a utility closet to change for gym class.
“I cried for hours before I wrote the school,” Maddox says. “I was just like, ‘How in 2015 is this happening?’”
Maddox’s daughter, J., a middle school student at Fairfax County Public School, came out as transgender earlier this school year. After notifying administrators, it was decided that J. should use a gender-neutral restroom on the first floor, for going to the bathroom and changing for gym class. But the facility is so far away from where gym classes are held that J. didn’t want to risk being late. Thus, she resorted to using a nearby utility closet. After notifying the school of her daughter’s actions, administrators attempted to provide other accommodations.
“They’ve offered notes so that she can change in the gender-neutral area, but she doesn’t want to be late every day,” says Maddox. “And I’m not sure if, at this point, she’d be comfortable using the girls’ locker room…. So for her, that’s the middle ground she’s comfortable with. I just wish there was an area she was comfortable in that wasn’t a closet. But right now, there’s not really any other options from the school besides her being late each day.”
A pending court case could give parents like Maddox some degree of hope for the future. In a Tuesday decision, the 4th U.S. Circuit Court of Appeals boosted a lawsuit brought by Gavin Grimm, a transgender student in Gloucester County who is challenging his school’s restroom policy. It currently forces Grimm and other transgender students to use an “alternative, private” facility if they opt not to use the restroom of their biological sex at birth.
After the Gloucester County School Board adopted the policy, Grimm and his legal team argued that it is discriminatory under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title IX of the Educational Amendments Act of 1972, which prohibits discrimination on the basis of sex. But U.S. District Judge Robert Doumar refused to grant an injunction that would allow Grimm to continue using the boys’ restroom as he did last school year, and threw out the part of the lawsuit claiming discrimination under Title IX.
In a first-of-its-kind ruling, the court of appeals voted 2-1 to vacate Doumar’s rejection of a preliminary injunction and restore Grimm’s claim of discrimination under Title IX. In the majority opinion, the court deferred to the U.S. Department of Education’s interpretation of Title IX. The department’s Office of Civil Rights previously ruled in a separate case out of Illinois that barring a female transgender student from using the girls’ restroom constituted sex discrimination. Grimm’s case now goes back before Doumar, who will determine whether to issue an injunction and decide Grimm’s case on its merits.
Ilona Turner, legal director of the San Francisco-based Transgender Law Center, says that, with respect to the injunction, the 4th Circuit is “essentially pointing the district court to exactly what the district court better conclude, in light of the undisputed facts of the case and what the Court of Appeals has laid out about what the law is under Title IX.”
“The court has made very, very clear that the district court has no choice but to strike down the school district’s policy, and require the school to allow Gavin to use the restroom that matches his gender identity,” adds Turner. “Because this decision is so broad in its holding, it will apply to virtually any case brought within the 4th Circuit about similar policies that discriminate against transgender people, prohibiting them from using facilities that match who they are.
“Schools everywhere in the states covered by the 4th Circuit, or, frankly, anywhere in the country, should be able to see the writing on the wall and have fair warning that these types of policies are against the law,” says Turner.
In response to Tuesday’s ruling, Fairfax County’s pro-LGBT faculty, staff and parent organization FCPS Pride released a statement saying their members were “heartened” by the ruling, while noting that it was a shame that Grimm will have waited more than a year for the courts to resolve his case before being permitted to use the boys’ restroom.
Robert Rigby, an FCPS teacher and spokesman for FCPS Pride, says Fairfax currently has a “patchwork” of policies in place, whereby individual schools make special arrangements with transgender students and their parents. But he says the members of FCPS Pride are looking forward to the publication of an across-the-board policy on how best to accommodate transgender students.
“Fairfax has been working for a long time on a generalized policy and on trainings for staff, who desperately need training,” he says.
Anecdotally, Rigby says that there’s “an explosion of trans kids coming forth in Fairfax,” who are slowly beginning to take the first steps in the coming out process. In talking to staff at other schools, Rigby estimates that the number of students who identify as transgender or outside of the gender binary is approximately 3 in every 200 students, meaning a fair number could be affected by a decision in Grimm’s favor.
Chaiya Mohanty Ortiz, whose transgender son Kayden is a high school senior in Fairfax County, has previously talked with Superintendent Karen Garza about implementing a uniform policy across the school district, as exists elsewhere, including the District of Columbia. Ortiz says Garza’s office told her that they had hired a consultant to review procedures and make recommendations. But she says she was also told the school district is waiting to see how the Grimm case is resolved.
“If Gavin’s successful, I’m assuming they will begin implementing the policies and procedures, and education of faculty and staff,” Ortiz says. “But I don’t know what implications that holds if he is not successful…. That being said, all of the public schools in Virginia that are receiving federal funding, and are not inclusive of our transgender and gay students, they are in violation of Title IX and at risk of losing their federal funding.”
One of the problems that Kayden faced in previous years was that he was forced to use the girls’ restroom and changing facilities. He felt so uncomfortable using the women’s locker room during his first two years of high school that when he got the chance to drop physical education in his junior year, he did.
“He doesn’t feel comfortable using the women’s room or locker room. He’s had top surgery and he’s been taking testosterone for a year-and-a-half,” explains Ortiz. “He’s legally considered a male, and he is changing and developing a lot of male characteristics. So it’s very awkward for him. He doesn’t look like a female, or sound like a female, or — I told him — even smell like a female. He smells like a boy.
“And the problem for him is, up to this point, rather than stoke any controversy, he would hold [urine] all day long,” Ortiz says. “He’s had several UTIs because of it. So that’s not good for his health. And I can’t imagine it’s easy to concentrate in school when you’re dying to go to the bathroom.”
This year, Kayden is finally able to use the men’s room, without any trouble, but he says he knows other transgender kids who are still forced to use the bathroom of their biological sex at birth, pointing to a need for a more consistent system-wide policy.
Asked what a victory by Grimm in his lawsuit would mean to him, Kayden said it would represent a “huge win” for the transgender community as a whole.
“I know it would help Fairfax actually start doing stuff with the person they hired to take care of the bathroom situation,” he says. “I feel it will change a lot of people’s opinions in North Carolina, hopefully. It would make it so transgender people could use the restroom of their actual gender. It would just mean a big deal for me.”
Kayden would also like to dispel the myths, perpetuated by some anti-LGBT opponents, that adopting pro-transgender policies will make more people identify as LGBT, or, even worse, that transgender people have ulterior motives for wanting to use the bathroom that corresponds to their correct gender.
“Coming out as transgender is a very difficult thing, especially at a young age, in high school,” says Kayden, who has lost friends, received death threats, and even been threatened with physical harm or corrective rape from fellow students since coming out as transgender.
“No one would purposely say they’re transgender just so they could, for example, get in the other bathroom just to get a chance to look at some girl or some guy changing or something,” he adds. “It’s a very real experience. The hate that we receive hurts us more than you know. And I just hope that people would grasp a better understanding of what it means to be transgender, and how, with support from other people, it can completely change people’s lives.”