Lawyers for transgender advocate Gavin Grimm are asking the 4th U.S. Circuit Court of Appeals to rule that protections against sex discrimination apply to transgender students.
Last year, the 4th Circuit ruled that Grimm had a right to sue the Gloucester County School Board for a policy banning him from the boys’ restroom. But it did so in the narrowest way possible, relying on the interpretation of Title IX as embraced by the Obama Administration’s Department of Education and the department’s Office of Civil Rights.
The administration would later spell out this interpretation in guidance to schools recommending that transgender students be treated according to their gender identity.
Following the rescission of that guidance by the Trump administration, the Supreme Court ordered the 4th Circuit to reconsider Grimm’s case, as the basis of its ruling in his favor no longer existed.
That means that Grimm and his American Civil Liberties Union lawyers must now argue that, regardless of the federal government’s stance, discrimination based on gender identity is inherently a violation of Title IX — a broader interpretation of the statute that some judges may not yet be ready to embrace.
“When this Court first considered Gavin’s appeal, it resolved the case on the narrowest available grounds by deferring to the Department of Education’s guidance interpreting its own regulation under Auer v. Robbins,” the brief filed by Grimm’s legal team reads. “The ‘dispositive realit[y]’ is that Gavin is recognized by his family, his medical providers, the Virginia Department of Health, and the world at large as a boy. Allowing him to use the same restrooms as other boys is the only way to provide him access to sex-separated restrooms pursuant to [the Education Amendments Act of 1972] without discrimination. It is, therefore, the only option consistent with the underlying requirements of Title IX and the Equal Protection Clause.
“Excluding transgender people from using the same restrooms as everyone else prevents them ‘from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment’ and Title IX ‘cannot countenance,’ the brief continues, quoting the Bostic v. Schaefer case that overturned Virginia’s ban on same-sex marriage.
“The regulation authorizing schools to provide separate restrooms for boys and girls…does not authorize schools to engage in discrimination prohibited by the underlying statute. Moreover, the actual experience of schools across the country demonstrates that the Board’s speculations about administrative difficulties or privacy violations have no basis in reality.”
Grimm’s lawyers also argue that he is likely to succeed in his argument that the Gloucester County School Board’s anti-transgender restroom policy violates his civil rights.
And even though Grimm is slated to graduate from high school within the next month, his lawyers argue his case is still relevant, as any ruling could affect transgender students who seek to use the bathroom consistent with their gender identity in future years.
“While it’s disappointing that I’m going to graduate high school without this case being resolved, I’ve long since realized that this fight is about more than just me,” Grimm said in a statement. “It’s for all of the trans youth who are in school or one day will be who shouldn’t have to go to school and be treated differently than anyone else, and I’m eager to continue my fight in order to do as much good for them as I can.”
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