Mar 02, 2017

Americans United for Separation of Church and State and the National LGBT Bar Association today asked the Supreme Court to affirm that a transgender student can use the school restroom that corresponds with his gender identity.

In a friend-of-the-court brief filed by attorneys at Hogan Lovells and Americans United, the groups joined forces to speak out in the case Gloucester County School Board v. G.G., which was filed on behalf of Gavin Grimm, a transgender teenager from Virginia.

Two months after Grimm, then a sophomore, alerted Gloucester High School administrators of his male identity and requested to use boys’ restrooms, the school board in December of 2014 adopted a policy requiring students to use the restroom that corresponds with their “biological gender.” As a result, Grimm can only use female restrooms, an inconvenient unisex facility attached to the nurse’s office, two janitors’ closets that have been converted into single-occupancy restrooms or go without using restrooms during the school day.

The American Civil Liberties Union, which is representing Grimm, argues that this policy violates Title IX, the federal law that prohibits schools from discriminating on the basis of sex and requires them to offer students equal access to school amenities.

Americans United and the National LGBT Bar Association agree, asserting in the brief that “using the restroom is an essential and ordinary part of life. If [Grimm] is singled out and prevented from using the restroom as his classmates do, he is also for practical purposes prevented from attending school in the same manner as they do. The Board’s policy thus subjects [Grimm] to sex-stereotyping and gender-identity discrimination that limits his ability to enjoy the educational opportunities guaranteed to him by Title IX.”

In the brief, the groups argue that religious or moral beliefs cannot dictate how the government enforces the law, especially when those beliefs result in harm to others.

“Gloucester’s demeaning policy treats Gavin and transgender students like second-class citizens,” said the Rev. Barry W. Lynn, Americans United’s executive director. “It’s disgraceful that the school board is discriminating against children and that members of the community encouraged the board to discriminate in the name of religion. Gavin simply wants to be treated with dignity and equality, like every other Gloucester student.”

The brief notes: “To be sure, some people hold deeply entrenched moral and religious beliefs regarding traditional sex roles and transgender people. Some of them spoke at the Board’s meetings; others have filed amicus briefs in this case. They are entitled to hold whatever views they wish; no court can dictate how a person should think. But this Court has never allowed such views to override federal antidiscrimination laws.”

AU and the National LGBT Bar Association ask the Supreme Court to affirm the opinion of the 4th U.S. Circuit Court of Appeals, which ruled in April 2016 that Title IX protects the rights of transgender students to use the restroom consistent with their gender identity. The high court issued a stay on the appeals court’s ruling, meaning Grimm – now a senior – still can’t use boys’ restrooms at his school.

AU Legal Director Richard B. Katskee and AU attorney Carmen Green joined attorneys Ken Choe, Sheree Kanner, Cate Stetson, Andrew Furlow, James Huang, Jessica Black Livingston and Mark D. Gibson of Hogan Lovells US LLP as authors on the brief. The case is scheduled to be argued before the Supreme Court on March 28.