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Relationships & the Law Today: Supreme Court looks at transgender bathroom policies
A recurring column
by Angelo D. DiBartolomeo
2016-11-30

This article shared 449 times since Wed Nov 30, 2016
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A transgender boy banned from using the boys' restroom at his high school sued his county school board alleging that it impermissibly discriminated him in violation of Title IX of the U.S. Constitution. The student's birth-assigned sex is female, but his gender identity is male.

Since he was a freshman, he began hormone therapy, legally changed his name to a traditionally male name, and has lived all aspects of his life as a boy. However, he has not undergone sex reassignment surgery ( an action that is not permitted for minors ). [This is an important distinction as the case that is the subject of this article is engrossed in the debate of sex versus gender as it applies to federal regulations regarding bathrooms in schools.]

At the student's request, his high school allowed him to use the boys' restroom in accordance with his gender identity as male. He was able to do so briefly without incident, however, as word spread through the community of the school's decision to accommodate the transgender student's identity, many demanded that he be prevented from using the boys' restroom.

It was argued by concerned community members that allowing him to use the boys' restroom violated the privacy of other students and would lead to sexual assault in school restrooms. An argument that is heard often by those opposing transgender individuals from using the restroom in accordance with their identity is that non-transgender boys would attend school wearing dresses so that they could freely access the girls' restroom.

Ultimately, the school board adopted a policy limiting restroom access to students based upon their biological sex and providing so-called "gender identity issues" an "alternative appropriate private facility." The student is unable to use the girls' restroom in accordance with his birth-assigned sex because—as he is a boy in all aspects of his life—it makes the female students uncomfortable. He has further stated that requiring him to use a separate, unisex bathroom "make[s] him feel even more stigmatized. … Being required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as different."

In June 2015, the student sued the school board, captioned G.G. v. Gloucester County School Board, Case No. 4:15-cv-00054-RGD-DEM, in the United States District Court for the Eastern District of Virginia. The District Court dismissed his Title IX claim reasoning that although Title IX prohibits discrimination on the basis of sex, it does not on the basis of other concepts such as gender, gender identity, or sexual orientation. Because regulations specifically allow schools to separate restrooms on the basis of sex, requiring him to use the girls' restroom in accordance with his birth-assigned sex of female is not a violation of Title IX.

The student subsequently appealed the dismissal of his Title IX claim to the United States Court of Appeals for the Fourth Circuit. On appeal, the main issue was the interpretation of the Department of Education's regulations implementing Title IX that permit schools to separate bathrooms on the basis of sex. The crux of the issue was that the Department's Office of Civil Rights specifically stated that the regulation is to be interpreted, in relation to transgender students, that "a school generally must treat transgender students consistent with their gender identity." The District Court, however, ruled that the regulation permitting separation on the basis of sex was unambiguous and did not afford deference to the Department's stated interpretation that transgender students are to be treated in a way consistent with their identity.

On appeal, the Fourth Circuit reversed the District Court's ruling holding that the Department of Education's regulation is in fact ambiguous, and thus, the courts are to grant deference to the Department's interpretation of its own regulations. Ultimately, the school board would have to prove that the Department's interpretation that transgender students are to be treated in conformance with their gender identity is inconsistent with the regulation. The case was thereby remanded back to the District Court, and on remand, the court granted the student's request for a preliminary injunction requiring the school board to allow him to use the boys' bathroom in accordance with the student's gender identity as male.

The school board has since appealed the Fourth Circuit's ruling that the Department's interpretation of its own regulations regarding the separation of bathrooms is to be given deference as it applies to transgender students and that schools are to treat them in accordance with their identity as opposed to their birth-assigned sex.

The U.S. Supreme Court in deciding to hear the case has affirmatively decided to engross itself in the national controversy over bathroom laws and policies being implemented across the country pertaining to transgender students. The continued need to protect the rights of transgender individuals in this country is at the heart of this case. The Supreme Court has now entered the field and is poised to render a decision that will provide great precedent and guidance on how transgender rights are to be protected in the future.

Thus, this is a monumental case to keep a close eye on, as it will inevitably set the stage for the progression of transgender rights and advocacy in the future.


This article shared 449 times since Wed Nov 30, 2016
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