A school board in Virginia is asking the Supreme Court to review its policy requiring students to use the bathroom that corresponds to their biological sex at birth after lower courts found the policy unconstitutional.
The appeal comes after the U.S. District Court for the Eastern District of Virginia and the U.S. Court of Appeals for the 4th Circuit ruled that the school board violated Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause by forbidding Gavin Grimm, who was born female, from using the same high school restrooms as boys. Grimm has since graduated from the school and is now an activist in California.
“I graduated four years ago—it is upsetting and disappointing that Gloucester County continues to deny who I am,” Grimm said in a statement. “Trans students in Gloucester County schools today should have the respect and dignity that I was denied. Whether it’s using the right restroom or having transcripts that reflect who we are, we all deserve to go to a school that’s free of harassment and discrimination.”
The 4th Circuit ruled that the board continued to discriminate against Grimm, “while schools across Virginia and across the country were successfully implementing trans-inclusive bathroom policies, again, without incident.” The court added, “It is time to move forward.”
But the school board argues that it has a strong case.
“For school officials, as for parents, the question of how best to respond to a teenager who identifies with the opposite biological sex is often excruciatingly difficult,” the board states in the petition.
“On the one hand, the teenager deserves and needs everyone’s compassion. On the other hand, allowing the teenager to use multi-user restrooms, locker rooms and shower facilities reserved for the opposite sex raises what this Court has acknowledged to be serious concerns about bodily privacy—for the teenager and others.”
“Unfortunately,” the 4th Circuit and now the new Biden administration have interpreted the Supreme Court’s 2020 decision in Bostock v. Clayton County “as imposing a one-size-fits-all solution to this vexing problem: According to them, even schools that lack sufficient facilities or resources to ensure the bodily privacy of all their students are still required by Title IX and the Fourteenth Amendment to allow biologically male teenagers into multi-user girl’s restrooms, locker rooms and showers, and vice versa.”
“Neither Title IX nor the Equal Protection Clause mandates such a sweeping rule, and only this Court can reverse decisions adopting it in a growing number of circuits, supported now by the incoming Administration.”
The ruling was a defeat for the Trump administration. During oral arguments in the case, then-Solicitor General Noel Francisco said, “Sex means whether you’re male or female, not whether you’re gay or straight.”
A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex.
But that ruling in Bostock v. Clayton County embraced the concept of gender identity, which conservative critics say is a radical political invention not based on science.
The American Civil Liberties Union contests the school board’s latest appeal.
“No student deserves the kind of treatment Gavin endured” while in high school, said Eden Heilman, legal director of the ACLU of Virginia.
“Courts have ruled time and again that transgender students must be protected from discrimination, yet Gloucester County schools continue to deny basic respect and dignity for its students. Over the last six years, Gavin’s case has inspired many people to advocate for inclusive policies in their communities, and we’re proud to continue working with [Grimm] toward equal rights for all trans students.”
