By Matt Hadro
The Supreme Court has announced that it will hear a case on whether students identifying as transgender may be required to use restrooms according to their biological birth sex.
“Schools have a duty to protect the privacy and safety of all students. That’s a compelling reason for the Supreme Court to review the 4th Circuit’s decision in this case, especially when other courts – including the 4th Circuit itself previously – have upheld that principle,” said Alliance Defending Freedom senior counsel Gary McCaleb, in response to the Court’s taking up the case G.G. v. Gloucester County School Board.
“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” he continued. “The Supreme Court should reverse the 4th Circuit’s ruling, which is out of step with the law and previous federal court precedent.”
Earlier, a U.S. Fourth Circuit Court judge had ruled that, in the case of student Gavin Grimm, who identified as transgender in the Gloucester County (Va.) School District, the school board must allow Grimm access to the bathroom of choice.
The case was appealed to the Supreme Court, which put a temporary stay on the ruling in August. Then on Friday, Court agreed to hear the case. It may serve as a landmark case for how other similar situations around the country are resolved in the courts.
According to court documents, Grimm was born a girl but received hormone therapy and a legal name change. Grimm’s mother told school officials that Grimm was “a transgender boy.”
Grimm was initially allowed access to the boys’ bathroom at school but then “the Board began receiving complaints from parents and students who regarded G.G.’s presence in the boys’ room as an invasion of student privacy,” the petition to the Court seeking review of the case stated.
“Parents also expressed general concerns that allowing students into restrooms and locker rooms of the opposite biological sex could enable voyeurism or sexual assault,” the statement continued.
The board, “to provide a safe learning environment for all students and to protect the privacy of all students,” then restricted access to bathrooms based on a student’s sex at birth. Students identifying as a different gender would use a separate unisex bathroom.
According to lawyers, Grimm refused to use a private bathroom because doing so would “make him feel even more stigmatized….Being required to use separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’”
The case went to court, and in April, the U.S. Fourth Circuit Court ruled that Grimm should be allowed access to the boys’ bathroom. It cited the Department of Education’s Office for Civil Rights statement that “a school generally must treat transgender students consistent with their gender identity.”
The petition to the Court noted that Title IX of the Civil Rights Act, which bans discrimination on basis of sex, allows for “separate toilet, locker rooms, and shower facilities on the basis of sex” so long as the facilities are “comparable.”
However, it added, “a Department of Education official opined in an unpublished letter that Title IX’s prohibition of ‘sex’ discrimination ‘include[s] gender identity,’ and that a funding recipient providing sex-separated facilities under the regulation ‘must generally treat transgender students consistent with their gender identity.’”
Thus, the case will hinge on whether the Court allows for this interpretation of Title IX – one that includes “gender identity” under protections against “sex discrimination” – to be correct and carry the “force of law.”