By Simon Brown
Most people take using public restrooms for granted. Not Gavin Grimm.
Grimm, 17, is a senior at Gloucester High School in Virginia. During ninth grade, he came out as transgender and requested to use the boys’ bathroom.
Initially, the school allowed him to use the bathroom, and there were no problems. But when word leaked out – causing some parents in the area to complain about the school’s inclusive practice – the school board instituted a policy that requires all students either to use the bathroom that corresponds with the sex they were assigned at birth or to use a special single-stall restroom in the school nurse’s office.
For Grimm, this turn of events was a devastating blow.
“I feel the humiliation every time I need to use the restroom and every minute I try to ‘hold it’ in the hopes of avoiding the long walk to the nurse’s office. And the humiliation can come when I least expect it,” Grimm wrote in an Oct. 27 column for The Washington Post.
After the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which recognized same-sex couples’ right to marry, the fight to attain equal treatment for all advanced to a new area of the law: protecting the rights of transgender persons – an effort that until now has not received the support or resources it deserves. Grimm’s dispute over access to a bathroom, the first of these cases to reach the high court, has taken center stage.
The first time Grimm used the boys’ bathroom at Gloucester High was at the beginning of his sophomore year in 2014. As he told The Post, Grimm had used men’s rooms in public places plenty of times before, so using the boys’ room at his high school felt like “the natural progression of things.”
Grimm’s transition was well under way. He had already cut his hair, begun wearing loose-fitting pants and graphic T-shirts and received hormone shots. But he didn’t just decide to use the boys’ bathroom on his own – he did so with permission from Principal Nate Collins, The Post reported.
“I went in, went out, same deal as always,” Grimm told the newspaper of his first trip to the boys’ room. “It was like, ‘Okay, great – I can use the bathroom now.’”
But it seems Grimm’s desire to use the restroom that corresponds with his gender identity was a real problem for some in this small rural county near the Chesapeake Bay with a population of under 40,000 residents.
Among the loudest objectors was Ralph VanNess, who works as a security guard at Gloucester High, serves as a pastor at Calvary Baptist Church and runs a Bible club at the school. During a stormy school-board meeting in November 2014, VanNess demanded that the school stop allowing Grimm to use the boys’ bathroom
“In my opinion, as a pastor looking at this situation, I do not believe that God makes mistakes,” VanNess told The Post. “God puts us on this Earth as who we are.”
And why did he choose to speak out on this issue? “It was a responsibility I had before God,” VanNess said.
All told, 27 people made comments during that board meeting – many of which were hostile toward Grimm. Some students expressed similar sentiments, with a few insisting that Grimm is a girl and invoking religious rationales for that belief.
“I don’t think it’s right,” John Groen, a sophomore, said. “I just believe if you’re a man, you’re a man, and if you’re a woman, you’re a woman … That’s how God made you, and that’s how He sees fit for you to be.”
With public pressure mounting, the school board members came up with what they probably believed was a solution that would work for everyone: designating one school bathroom as gender-neutral. But that idea didn’t work for the person who needed it most: Grimm.
“The alternative facility was a unisex bathroom. I’m not unisex. I’m a boy. And there’s no need for that kind of ostracization,” Grimm told National Public Radio.
With both sides at an impasse, Grimm decided to sue in federal court in June 2015. In a ground-breaking argument, Grimm’s lawyers at the American Civil Liberties Union asserted that the school was discriminating against him in violation of Title IX – a federal law that bars discrimination in education on the basis of sex – as well as the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Unfortunately, Grimm lost the case before the trial court. In a September 2015 opinion, the U.S. District Court for the Eastern District of Virginia ruled that because Grimm had access to a bathroom that was as good as the regular facilities in the school, his rights were not violated. The court ruled that the law “specifically allows schools to maintain separate bathrooms based on sex as long as the bathrooms for each sex are comparable. Therefore, the School Board did not run afoul of Title IX by limiting G.G. to the bathrooms assigned to his birth sex.”
Grimm and his attorneys appealed, and this time they won. The U.S. 4th Circuit Court of Appeals overturned the lower court’s ruling in April 2016. In its decision, the court cited a guidance policy, issued by the U.S. Department of Education, that explains how Title IX protects the rights of transgender students.
The guidance was part of an ongoing effort by the Obama administration to protect transgender people. In 2014, the U.S. Departments of Education and Justice announced that transgender students are protected under existing laws that prohibit sex discrimination at publicly funded schools. The Department of Education moved quickly to enforce this rule: It determined in 2015 that an Illinois school district violated the law when it refused to allow a transgender girl to use the locker room that corresponded with her gender identity.
The appellate court saw these developments as significant.
“Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.’s Title IX claim,” read the opinion. The appeals court sent the legal tussle back to the lower court for further proceedings.
But education officials in Gloucester County weren’t ready to quit. They asked the Supreme Court to put Grimm’s victory on hold while the case moves forward. In August, the court agreed to do that. The justices voted 5-3 to issue a legal stay, a move that had the effect of putting Grimm’s win on a temporary hold. A few months later, in October, the high court announced that it would hear the full case.
The high court’s decision to stay Grimm’s lower-court victory shouldn’t be interpreted as a sign that Grimm will lose his legal suit. Issuing a stay is not an uncommon move for the court. In fact, Justice Stephen Breyer said that he voted for the stay as a “courtesy” to the conservative justices to keep the status quo in place while the matter was pending. The real test will come when the Supreme Court considers the case on the merits.
Although the legal wrangling has captured a lot of attention, the high court will actually consider only two fairly narrow aspects of the dispute: The justices will decide whether the federal courts should give deference to a guidance letter like the one issued by the Department of Education, and whether the department properly interpreted Title IX when saying that federal law protects transgender students.
Those issues are further complicated, however, by the change of administrations. Under President Obama, the Education Department and other federal agencies proactively sought to protect LBGTQ rights. The government will soon be under the direction of President-elect Donald Trump, and the federal agencies could quickly reverse course. (Another wild card is the vacancy on the Supreme Court, which Trump has promised to fill with a conservative jurist as soon as he’s in office.)
Still, the case presents compelling issues that aren’t going away. Across the country, public schools are grappling with how to ensure that transgender students have the same access to educational opportunities as everyone else. The issue of the rights of trans students has become another fault line in the ongoing “culture wars,” which often play out in America’s public schools.
Given what is at stake, Americans United expects to file a friend-of-the-court brief in the case, Gloucester County School Board v. G.G. Among the points that AU expects to make is that religious freedom does not include the right to use the government to impose one’s religious beliefs on others. It’s an argument Americans United makes regularly when it represents parties and when it files friend-of-the-court briefs.
“Individuals who disapprove of trans students on religious grounds shouldn’t be allowed to force Gavin to go to the nurse’s office every time he has to use the restroom,” said Americans United’s legal director, Richard B. Katskee. “Gavin isn’t sick; he’s courageous. Religious freedom is a shield to protect against governmental imposition of religious views. It isn’t a weapon to force others to live according to your own beliefs.”
Religious Right groups will also be speaking out about the case. Many of them have waded into similar legal battles in the lower courts, often representing parents or students who complain that allowing transgender students to use the bathroom that matches their gender identity somehow infringes on the privacy rights of other students.
Alliance Defending Freedom (ADF), a large Religious Right legal group based in Arizona, has been making this sort of argument for years. The group promotes a model bathroom policy for public schools that rejects even the existence of transgender people by conflating gender identity with chromosomal sex – that is, they contend that one’s gender is female if one has two X chromosomes and male if one has an X and a Y chromosome.
ADF’s proposed policy also urges schools to restrict bathroom and locker-room use to one chromosomal sex or to force transgender students to use separate facilities. This policy played a major part in Grimm’s case because Gloucester County adopted ADF’s suggestions.
And ADF and groups like it are doing more than offering a model policy. They are also going after trans-friendly school districts.
For example, in November 2015, Liberty Counsel, which represents infamous Rowan County, Ky., clerk Kim Davis, threatened to sue the Mount Horeb, Wisc., school district over a planned reading of I Am Jazz, a children’s book co-written by teenage transgender activist Jazz Jennings.
In a letter to parents, the principal of Mount Horeb Primary Center explained that the book had been assigned to prepare students for a classmate’s gender transition and to prevent harassment.
But Liberty Counsel would have none of it. In a letter, the group accused school officials of seeking “to subject Primary School students to a discussion of gender confusion and sexuality, under the guise of ‘antibullying,’ ‘diversity,’ and building a ‘safe and nurturing environment.’”
The letter insisted that Jennings, who is female, is actually “a male child ‘transgender’ activist, who has been permitted to undergo harmful gender reassignment drug therapy and hormone blockers, resulting in permanent physical changes to his body.”
Facing pressure from the group, the school dropped its plan have students read the book. In a letter to parents, school officials observed, “Please know that our continuing goal is to protect all students from any bullying, harassing or intimidating behavior at school so that all of our students may learn together in a safe and caring environment.”
Indeed, according to Cole Parke of Political Research Associates, ADF, Liberty Counsel and similar groups have launched “targeted attacks” on school districts that extend full protections to transgender students. Parke asserted that thanks to this activity, “it’s likely that countless other schools have quietly adopted trans-exclusionary policies, writing oppression into their student handbooks and thus ensuring the right to discriminate against” transgender students.
As for Grimm, he’s still dismayed that his fight for basic civil rights has gone on so long and reached the highest court in the land.
As he observed in The Post op-ed, “If you told me two years ago that the Supreme Court was going to have to approve whether I could use the school restroom, I would have thought you were joking.”