Supreme Court To Decide Case Involving Transgender Student’s Use Of Bathroom
The Supreme Court has agreed to hear a case involving Federal law and the rights of transgender students.
The Supreme Court has agreed to hear a case out of Virginia involving the contentious issue of whether, and to what extent, public schools should be required to accommodate transgender students by allowing them to use the bathroom designated for the gender they identify with rather than their biological gender:
WASHINGTON — The Supreme Court on Friday entered the national debate over transgender rights, announcing that it would decide whether a transgender boy may use the boys’ bathroom in a Virginia high school.
The court is acting just a year after it established a constitutional right to same-sex marriage, as state laws and federal actions on transgender rights have prompted a welter of lawsuits. In taking the case, the court signaled that it may move more quickly in the area of transgender rights than it has in expanding gay rights.
The public debate has been ignited, in part, by a North Carolina law that requires transgender people to use bathrooms in government buildings that correspond with the gender listed on their birth certificates, a statute that has drawn protests, boycotts and lawsuits.
The case revolves around how the Obama administration is entitled to interpret a federal regulation under a 1972 law that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.
The Department of Education said last year that schools “generally must treat transgender students consistent with their gender identity.” In May, the department went further, saying that schools could lose federal money if they discriminate against transgender students.
That left school districts grappling with how to treat transgender students. In August, a federal judge in Texas blocked Obama administration guidelines on restroom access for such students.
The case the Supreme Court agreed to hear concerns Gavin Grimm, who was designated female at birth but identifies as male. He attends Gloucester High School in southeastern Virginia.
For a time, school administrators allowed Mr. Grimm, 17, to use the boys’ bathroom, but the local school board later adopted a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.” The board added that “students with gender identity issues” would be allowed to use private bathrooms.
The American Civil Liberties Union, which represents Mr. Grimm, told the justices that “girls objected to his presence in the girls’ restrooms because they perceived him to be male.” The group’s brief said requiring Mr. Grimm to use a private bathroom had been humiliating and had, quoting him, “turned him into ‘a public spectacle’ before the entire community, ‘like a walking freak show.'”
Mr. Grimm, the brief said, “avoids drinking liquids and tries not to urinate during the school day” and has, as a consequence, “developed painful urinary tract infections and felt distracted and uncomfortable in class.”
In a statement issued on Friday, Mr. Grimm said: “I never thought that my restroom use would ever turn into any kind of national debate. The only thing I ever asked for was the right to be treated like everyone else.”
He continued: “While I’m disappointed that I will have to spend my final school year being singled out and treated differently from every other guy, I will do everything I can to make sure that other transgender students don’t have to go through the same experience.”
Speaking of the Supreme Court’s decision, Shannon Minter, the legal director of the National Center for Lesbian Rights, said: “This is one of the most important days in the history of the transgender movement. The outcome of this case is likely to shape the future of that movement in ways that will resonate for a very long time.”
Gary McCaleb, a lawyer with Alliance Defending Freedom, which filed a brief supporting the school board in Virginia, said, “Schools have a duty to protect the privacy and safety of all students.”
“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” he said.
After Mr. Grimm challenged the school board’s bathroom policy in court last year, a divided panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled the policy unlawful. A trial judge then ordered school officials to let Mr. Grimm use the boys’ bathroom.
A 1975 regulation adopted under the 1972 law, Title IX, allowed schools to provide “separate toilet, locker rooms and shower facilities on the basis of sex.” The Fourth Circuit said that it was ambiguous and that the Education Department’s interpretation of it was entitled to “controlling weight.”
As a preliminary matter, it is important to note what the Court is and isn’t deciding in this case, especially since the commentary I’ve read about this in the media seems to be overstating what the issues in the case actually are. For one thing, the Court is not deciding whether or not there is a Constitutional right for transgender students or adults to use the bathroom of the gender they identify with, nor is it deciding if other members of the public have some sort of right to bodily privacy that would allow them to object to someone who identifies as female but was born male to use the same bathroom facilities as they do. Instead, the Court is being asked to decide the extent to which a regulatory agency, in this case the Department of Education, should be given deference to interpret the statutes it is charged with implementing. In this case, the question concerns a set of guidelines issued by the DoE informing public schools of the Department’s conclusion that a 1972 law passed by Congress barring discrimination based on gender covered this situation and that their interpretation of that statute required recognition of the gender identity claims of transgender students meant that they had to comply with all reasonable requests for accommodation. Previously, the Supreme Court has held in a case called Auer v. Robbins that Federal Courts should defer to agency interpretations of its regulations, so the issue here is whether the agency’s interpretation of the relevant statute was based on a permissible construction of the statute. This same issue is also at issue in a lawsuit filed by Texas and a number of other states against the Department of Education regarding this interpretation. In August, the Federal Court hearing that matter issued a stay against the DoE regulations until the matter could be resolved on the merits.
Amy Howe at SCOTUSBlog notes that this case seems likely to be heard some time during the Court’s February hearing schedule. The question, of course, is whether that will be a hearing before a full Court of nine Justices or before the current make up of eight Justices. That will depend on whether or not a new Justice can be confirmed prior to the time that the case would be heard. As things stand, it still seems unlikely that the Senate will give Merrick Garland a hearing or vote prior to President Obama leaving office, at least as long as Republicans control the Senate. This would leave it up to the new President to appoint a Justice and for the Senate that will be seated after the election to act on that nomination. Theoretically, I suppose it’s possible that the new President could act quickly enough after January 20th to get a nomination to the Senate, and that the Senate could expedite hearings and a vote on that nominee so that he or she takes office as soon as possible. Given the current rhetoric from Republicans regarding blocking any nominee from Hillary Clinton should she become President, though, the odds of that happening could be quite low. What this means, of course, is that it’s likely we’ll end up with a divided Court, depending largely on Anthony Kennedy’s swing vote. If Kennedy votes with the Court’s liberals to uphold the DoE policy, then we’ll have a 5-3 decision upholding the Fourth Circuit’s ruling in this case in favor of the transgender student. If the Court is evenly divided, then the Fourth Circuit’s ruling will similarly be upheld but there will be no national precedent set and this issue will remain unresolved.