Not knowing where to go when you have to go

The Obama administration is voicing its support for Gavin Grimm, a sixteen-year-old transgender boy who was recently told by a federal judge that he is not allowed to use the boy’s bathroom.

Photo by Torbak Hopper (Flickr).

The Obama administration has officially made its opinion public regarding transgender students using bathrooms in public schools.  The U.S. Department of Education and the Department of Justice issued an amici brief two weeks ago when a federal judge upheld a school district’s policy banning transgender students from using bathrooms according to their gender identity.  The government advises school districts that treating students differently because he or she does not identify with their birth-assigned sex is a violation of Title IX.

The American Civil Liberties Union (“ACLU”) filed a federal sex discrimination lawsuit on behalf of Grimm against the Gloucester School Board.

Gavin Grimm, a sixteen-year-old in Gloucester, Virginia, began his junior year of high school with a fresh start.  In 2014, Grimm came out to his parents as transgender.  He explained to them that although he was born as a female, he always felt that he was supposed to be male.  A few months later, Grimm was diagnosed with gender dysphoria, a condition in which a person experiences discomfort or distress because there is a mismatch between their biological sex and their gender identity.  Grimm was very open about this to his school and all of administration about his transitioning.

He began the transitioning process and was allowed to use the boy’s bathroom for about seven weeks.  However, after complaints from parents, it was not long until the school board passed, by a 6-1 vote, a new policy discriminating against students who identify as transgender.  The “alternative bathroom” policy forces all students who are transgender to only use a single stall bathroom or the bathroom that corresponds with their biological sex, and not the gendered bathroom that he or she identifies with.  Specifically, the policy states:

[It] shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with since gender identity issues shall be provided an alternative private facility.

In June 2015, the American Civil Liberties Union (“ACLU”) filed a federal sex discrimination lawsuit on behalf of Grimm against the Gloucester School Board (“School Board”).  The ACLU argued that the School Board was singling out transgender students and was discriminating against Grimm based on his sex.  Additionally, the ACLU wrote a letter to the U.S. Department of Justice Civil Rights Division, insisting that Grimm “must use the boys bathroom as an essential part of [his] treatment for gender dysphoria.”

The letter specifically states that the “biological gender” policy is discriminatory on its face and discriminates against Gavin on the basis of sex in violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”).  Furthermore, Grimm is protected from discrimination based on gender identity under the Fourteenth Amendment to the U.S. Constitution.

The School Board fought back against the ACLU.  George (Randy) Burak, the local school board chairman, released a statement stating that the Board was doing what was best for the entire district, not just one student.  Since other students use the bathrooms and locker rooms at school, the Board must consider their opinions and peace of mind, too. Additionally, the School Board argued that Grimm is not being discriminated against because he is still free to use the girls’ bathroom or one of the unisex bathrooms.

Federal courts have ruled that protections under Title IX apply when there is discrimination based on gender identity or transgender status. 

Under Title IX, no student “on the basis of sex may be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  Additionally, federal courts have ruled that protections under Title IX apply when there is discrimination based on gender identity or transgender status.

According to the ACLU, the School Board is singling out transgender students for disparate treatment based on their transgender status.  Every other boy, except Grimm and others who are similar to him, are allowed to use the boys’ bathroom or the unisex bathroom.  It is their choice.  However, transgender students do not have the choice. They must use the separate unisex facilities.  Joshua Block, an ACLU lawyer who filed this lawsuit argues,

The policy is deeply stigmatizing and needlessly cruel. Any student, transgender or not, should be free to use single-stall restrooms if they want extra privacy. Instead of protecting the privacy of all students, the School Board has chosen to single out transgender students as unfit to use the same restrooms as everyone else.

On September 4, 2015, Judge Robert G. Doumer of the U.S. Eastern District of Virginia rejected the immediate injunctive relief for Grimm.  Judge Doumer ruled that the School Board’s policy was not discriminatory and did not violate Title IX.  He did not rule on whether the policy was a violation of the Fourteenth Amendment.  The ACLU has appealed Doumer’s decision.

Judge Doumer’s decision goes against the settlement decision in Student v. Arcadia Unified School District.  Back in 2013, a lawsuit was brought by the National Center for Lesbian Rights on behalf of an anonymous student, and was settled before going to trial.  The case brought the clear indication that Title IX protects students from discrimination in schools.  Further, the government makes it clear that under Title IX, schools need to treat transgender students in accordance with their gender identity.

According to the Resolution Agreement, Arcadia School District is required to “revise its policies to state that transgender and gender nonconforming students are entitled to equal access to all of the school’s programs, facilities, and activities.”

 The Obama administration made it known that the School Board’s policy constitutes “unlawful bias” under Title IX. 

Two weeks ago, the Department of Justice and the U.S. Department of Education filed a friend-of-the-court brief disagreeing with Judge Doumer’s decision.  The Obama administration made it known that the School Board’s policy constitutes “unlawful bias” under Title IX.

Although the opinion is not legally binding, it sends a “crucial message” to society that transgender youth are valuable members of society and are entitled to the same protections under the law as anyone else.  It also signals to school districts across the United States that in order to avoid federal investigation, they should adopt policies that do not discriminate against transgender students.  The lawyers for both departments make it clear that when you treat a student differently because his or her birth-assigned sex differentiates from the gender the student identifies with, there is a violation on the basis of sex under Title IX.

Gavin Grimm’s Title IX discrimination case is now pending before the United States Court of Appeals for the Fourth Circuit.  Until then, Grimm will have to continue following the policy set forth by the School Board.  It is unknown as to whether Judge Doumer will make a decision on the ACLU’s argument regarding the Fourteenth Amendment.

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About Danielle Feller, Associate Editor (16 Articles)
Danielle Feller is a 2016 graduate and served as an Associate Editor for the Campbell Law Observer during the 2015-2016 academic year. She is originally from Mooresville, North Carolina and graduated from North Carolina State University in 2013 with a degree in Political Science with a concentration in Law and Justice and a minor in Business Administration. Following her first year of law school, Danielle interned at the Mecklenburg County Public Defender's Office in the Felony Unit. Following her second year of law school, Danielle interned at the Office of the Federal Public Defender for the Eastern District of North Carolina. Danielle is also worked as Professor Bobbi Jo Boyd's research assistant during her third year of law school.
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