September 12, 2016
In August 2016, the U.S. Supreme Court temporarily refused to permit a transgender boy in Virginia, who was originally born as a female, to select the boys’ bathroom at his high school. In a 5-3 decision, Justice Stephen G. Breyer sided with the majority, deferring a final ruling until the court decides if they will hear the case. However, this ruling does not impact other cases presently before the court.
The Virginia school has provided private bathrooms for any students with gender identity issues. However, the school originally permitted Gavin Grimm, the student at the center of the controversy, to use the boys’ bathroom. They later changed the policy, so Mr. Grimm filed a civil lawsuit.
The Fourth Circuit determined that the school policy was illegal and that Mr. Grimm should be allowed to use the boys’ bathroom as he wishes. The school board is requesting a hearing before the Supreme Court.
The attorneys for the school argued that granting Mr. Grimm permission to use the boys’ bathroom would disrupt the school. The American Civil Liberties Union countered that only one student in one school was affected, which would not cause a problem for the school. The legal issue at stake relates to discrimination under Title IX, which prohibits any discrimination on the basis of sex. The court will likely review how gender identity plays into the 1972 law.
A North Carolina law states that people must use the bathroom that corresponds with the gender as documented on their birth certificates. The law has met with civil lawsuits, boycotts and protests. The Obama administration has threatened schools with cuts in funding if they do not permit student choice when it comes to bathroom use. However, about half of the states have challenged the federal directive.
In 2015, the Department of Education voted that transgender students can use the bathroom of choice. However, the DOE has interpreted their own regulations, which the court must follow, according to Auer v. Robbins, a 1997 U.S. Supreme Court decision. The decision has met with criticism from several justices.
Due to the relatively recent challenges that face the Supreme Court regarding transgender issues, the Court is still feeling its way through these matters.
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