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Federal appeals court sides with transgender teen, says bathroom case can go forward

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April 19, 2016

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Transgender teen bathroom case

Source: Washington Post

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A federal appeals court in Richmond has sided with a transgender high school student, saying that he can proceed with his lawsuit arguing that his school board’s decision to ban him from the boys’ bathroom is discriminatory.

In backing high school junior Gavin Grimm, the U.S. Court of Appeals for the 4th Circuit deferred to the U.S. Education Department’s interpretation of policies that give transgender students access to the bathrooms that match their gender identities rather than their biological sex. The federal department has said that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, which prohibits gender discrimination at schools that receive federal funding.

“It’s a complete vindication for the education department’s interpretation of Title IX,” said Joshua Block, an attorney with the American Civil Liberties Union who represents Grimm.

In a 2-to-1 decision, the 4th Circuit reversed a lower court ruling, saying that court had used the wrong legal standard in denying the student a preliminary injunction that would have allowed him to use the boys’ bathroom at his high school in Gloucester County, Va. Judge Henry Floyd, who wrote the majority opinion, also ruled that the boy’s discrimination lawsuit could move forward. The appeals court remanded the case to the lower court to be reheard.

The 4th Circuit is the highest court to weigh in on the question of whether bathroom restrictions constitute sex discrimination, and the decision could have widespread implications on how the courts interpret the issue as civil rights activists and local politicians battle over school bathrooms.

“The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity,” the court wrote.

A U.S. District Court judge in Virginia last year denied Grimm’s request for a preliminary injunction — which was backed by a statement of interest from the Justice Department — ruling that the privacy rights of other students outweigh the hardship Grimm endures by having to use a separate bathroom. That judge also granted the Gloucester County school board’s motion to dismiss the suit outright, a decision that the 4th Circuit overturned Tuesday.

In the wake of the legalization of same-sex marriage, public bathrooms have become the latest battleground in the fight for LGBT rights, with conservative activists and some state lawmakers pushing restrictions that prevent transgender people from using bathrooms in accordance with their gender identity rather than their biological sex. Activists also have used the bathroom debate as a venue for rolling back broader civil rights protections for gay and transgender people, arguing that those protections create dangerous scenarios — in the supposedly safe spaces of single-sex public bathrooms — that violate privacy and common sense.

North Carolina Gov. Pat McCrory (R) recently signed into law a ban on local government measures that protect gay and transgender people from discrimination; he focused specifically on the bathroom issue in arguing that the ban was necessary to prevent local governments from allowing “a man to use a woman’s bathroom, shower or locker room.”

That law has sparked protests and economic boycotts in the state. Duke University leaders this week publicly condemned “in the strongest possible terms” the North Carolina law and called for its repeal.

A new law in Mississippi allows schools to require students to dress and use the bathroom in accordance with the gender on their birth certificate. It also extends broad protections to business owners and religious organizations for refusing service to gay and transgender people based on their “sincerely held religious beliefs” or “moral conviction.”

The case in Virginia centers on Grimm, now a junior at Gloucester High School. Grimm, who was born with female anatomy, came out as male to his classmates in high school and began using the boys’ bathroom his sophomore year. Seven weeks later, angry parents raised concerns with the school board, prompting members to pass a policy that requires students to use school bathrooms corresponding with their “biological gender” and indicates that transgender students should use a separate, unisex bathroom.

Grimm sued the school board in federal court, arguing that the new rule violated Title IX, the federal law that bars gender discrimination in the nation’s schools. He also asked for a preliminary injunction to allow him to use the boys’ bathroom while his case proceeded. A U.S. District Court judge denied his request, and Grimm’s attorneys appealed the decision to the 4th Circuit, which heard arguments on the case in late February.

Transgender students say that using the bathroom that corresponds with their gender identity is important for them — and others — to feel comfortable. Transgender male students, for example, often dress and appear as boys, and it could generally raise alarms if they were to use a girls’ bathroom. They also say that having to use a bathroom that doesn’t match their gender identity, or having to go to a separate bathroom, can have negative psychological effects.

Grimm has said that the debate made him the subject of ridicule within his community, adding anguish to his adolescence, already a challenging time for many teens.

“Matters like identity and self-consciousness are something that most kids grapple with in this age range,” Grimm said in January. “When you’re a transgender teenager, these things are often very potent. I feel humiliated and dysphoric every time I’m forced to use a separate facility.”

But the decision’s legal implications are far broader than just Grimm’s case, as it could shape other court battles, including one in North Carolina, where a transgender university student and employee already have sued to overturn the new law there. Other judges outside the 4th Circuit, which includes North Carolina, could look to the court’s ruling in future legal fights because it is the highest court so far to weigh in on the legality of bathroom restrictions for transgender students.

The Obama administration has taken the position that such restrictions for students are a violation of Title IX, and officials in Washington have warned school districts that they risk losing federal funding if they fail to accommodate transgender students. Following a civil rights complaint, the U.S. Education Department found that an Illinois school district violated Title IX when it barred a transgender girl from a girls’ locker room.

But lower-court rulings have gone against the Obama administration’s position, including in Grimm’s case, when a district judge ruled that Title IX protects students from discrimination based on biological sex, not gender identity.

A U.S. District Court judge in Pennsylvania ruled against a transgender man who was convicted of trespassing and was expelled from a public university for using the men’s locker room there. In her March 2015 decision, Judge Kim Gibson wrote that barring the student from the men’s locker room was not discriminatory.

Matt Sharp, an attorney with the Alliance Defending Freedom, which backed the school board in a friend-of-the-court brief and has supported bathroom restrictions elsewhere, said he expects the U.S. Supreme Court to eventually take up the question of whether bathroom restrictions constitute discrimination in this case or another.

“So much is at stake,” Sharp said. “You’re talking about schools across the country, billions of dollars of federal funding.”

Nationally, public officials have watched the Virginia case closely. McCrory and Maine Gov. Paul LePage (R) submitted friend-of-the-court briefs, arguing that schools can create bathroom restrictions for transgender students without running afoul of Title IX.

The case ultimately could affect how future legislation takes shape. The Human Rights Campaign, which tracks bills related to lesbian, gay, bisexual and transgender issues, counted 14 states that debated bills that would restrict bathroom usage for transgender students, including Virginia, where a state lawmaker said his bill was voted down because lawmakers wanted to see how the 4th Circuit ruled before they proceeded.

South Dakota Gov. Dennis Daugaard (R) vetoed a bill that would restrict transgender public school students from using bathrooms in accordance with their gender identity, arguing that schools were best equipped to handle accommodations for transgender students. He also pointed to the Obama administration’s assertion that such restrictions constitute sex discrimination and said the state mandate could open up schools to litigation.

Voters in Houston last year voted down a law that would have extended nondiscrimination protections to gay and transgender people after opponents tagged the ordinance “the bathroom ordinance” and rallied around the slogan: “No men in women’s bathrooms.”


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