A short-handed Supreme Court on Friday entered the bathroom wars, as justices agreed to hear a challenge over a transgender student’s access rights.
Taking on a volatile social issue, the high court agreed to hear a challenge from a Virginia school board that lost when it sought to limit which bathroom a transgender teenager could use.
The 17-year-old high school student, identified in court documents as “G.G.,” was born a biological female but identifies as a male and has been taking hormone therapy.
The Supreme Court’s decision means the Gloucester County School Board and its many conservative allies convinced at least four of the eight current justices that the challenge deserved a full hearing.
The decision means, as well, that a nationwide standard could eventually guide political bodies that want to follow the Virginia school board’s lead in restricting transgender bathroom access.
“Events have left Missouri public schools in limbo as to the current state of the law,” a brief filed by Missouri Attorney General Chris Koster stated, adding that “administrators must have definitive guidance as to what the law requires of them in order to maintain federal funding.”
The governors of North Carolina and Kentucky, as well as the attorneys general of 18 states including Georgia, Kansas, South Carolina and Texas, had likewise all urged the Supreme Court to hear the Virginia school board’s case.
The court’s acceptance of the school board’s petition came despite the vacancy left by the February death of the late Justice Antonin Scalia and the refusal of Senate Republicans to consider a replacement.
Being forced to use separate restrooms physically and symbolically marks G. as different, isolates G. from his peers, and brands him as unfit to share the same restrooms as others.
Attorneys for transgender student Gavin Grimm.
To fill Scalia’s seat, President Barack Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit on March 16. Until Friday, justices had appeared to be avoiding incendiary issues while they await Scalia’s replacement.
The Virginia case is rooted in Gavin Grimm’s gender identity, about which he came out to his parents as a high school freshman. His school principal subsequently allowed him to use the male restroom, and during the subsequent litigation he allowed his full name to become public.
“He has a state ID identifying him as male, and, as a result of hormone therapy, has facial hair, a deep voice, and other male secondary sex characteristics,” G.G.’s attorneys stated in a brief. “In every aspect of life outside school, G. is recognized as a boy.”
Nonetheless, the Gloucester board approved a district-wide policy prohibiting school administrators from allowing transgender students to use facilities consistent with their gender identity regardless of the individual circumstances.
“For decades our nation’s schools have structured their facilities and programs around the idea that in certain intimate settings men and women may be separated to afford members of each sex privacy from the other sex,” the school board’s attorneys advised the court.
Grimm’s family challenged the school board’s policy, in part, as a violation of Title IX of the federal Education Amendments Act banning sex discrimination in education programs. A trial judge initially rejected that argument.
But in April, the 4th U.S. Circuit Court of Appeals reversed the trial judge and agreed with Grimm that the Obama administration was reasonable in its interpretation that Title IX covered transgender individuals.
“In a case such as this,” the appellate court concluded, “the weighing of privacy interests or safety concerns, fundamentally questions of policy, is a task committed to the agency, not to the courts.”
Further complicating the issue, a Texas judge in August put on hold the Obama administration’s policy that Title IX covers transgender students. That challenge is still ongoing.