Supreme Court asked to review Virginia transgender bathroom case


The transgender bathroom battle is back and in front of the Supreme Court.

A transgender student’s six-year legal fight to use group bathrooms and locker rooms at school returned this month for a second time to the high court, pressuring the new conservative-tilted bench to weigh in.

“I graduated four years ago — it is upsetting and disappointing,” said Gavin Grimm, the transgender litigant. “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 conflict pitting privacy concerns against transgender rights has been moving through courts across the country and produced divided rulings, setting up the justices to consider the challenge.

Mr. Grimm first sued the Gloucester County, Virginia, School Board in 2015 after he began transitioning during his sophomore year.

The first arrangement Mr. Grimm made with his school was for him to use the bathroom at the nurse’s office. He later changed his mind and requested to use the boys’ room.

After complaints from parents and students, the board created a policy allowing restroom and dressing facilities to be used by students of the same sex and transgender students to use a private, unisex facility.

Mr. Grimm refused to use the unisex bathrooms and sued, arguing the policy violated federal law banning sex discrimination in schools and the Constitution’s Equal Protection Clause.

The Obama administration, at the time, filed a brief in support of Mr. Grimm’s case, noting the Department of Education recognized federal law as banning discrimination based on gender identity in schools.

The 4th U.S. Circuit Court of Appeals ruled in favor of Mr. Grimm. The school board took the case to the Supreme Court in 2016, which agreed to review the case.

After the Trump administration took control, it withdrew the prior administration’s argument that discrimination in schools covered gender identity, which prompted the high court to vacate the 4th Circuit’s ruling and send the case back down for further litigation.

The lower courts again ruled for Mr. Grimm. Enter the Biden administration, which reverted to the Obama-era policies for transgender students.

The change forced the Gloucester County School Board last week to again petition the justices to hear the case and decide if it is legal to require transgender students to use unisex restrooms and locker rooms.

The board’s filing said the lower court decision “undermines the ability of the more than 400 school districts in the Fourth Circuit to seek reasonable accommodations to protect and balance the privacy and other interests of their students, including their transgender students, by adopting and enforcing bathroom, locker room, and shower policies and procedures sensitive to those varied interests.”

The Supreme Court previously gave wide latitude for lesbian, gay and transgender rights.

Last year, the justices ruled that it is a violation of the Civil Rights Act of 1964 for employers to fire LGBTQ employees. Justice Samuel A. Alito Jr. warned in a dissenting opinion that the ruling could open the door for more transgender rights in schools and sports.

Curt Levey, president of the conservative Committee for Justice, said the law and politics of the bathroom issue have been progressing and last year’s ruling has been interpreted broadly by the courts, so it’s likely the justices will have no choice but to weigh in.

“It seems like things are moving pretty quickly and the Supreme Court is probably not going to be able to avoid it for long,” he said. The American Civil Liberties Union, which is representing Mr. Grimm, said the new filing from the school board was “disappointing.”

“The Gloucester County School Board is still digging in its heels. Federal law is clear: Transgender students are protected from discrimination. Gloucester County schools are no exception,” said ACLU lawyer Josh Block.

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