Supreme Court asked to weigh in on transgender bathroom dispute

The Supreme Court has its first chance this week to weigh in on the legal controversy over transgender students, as a Virginia school board seeks an emergency order exempting it from the Obama administration’s policy to allow students to use bathrooms “consistent with their gender identity.”

The 4th Circuit Court in a 2-1 decision upheld this policy in April and ruled for Gavin Grimm, a 17-year old transgender boy from Gloucester, Va. He had sued after the school board adopted a rule saying the use of restrooms “shall be limited to the corresponding biological genders.”

The U.S. Department of Education cited this ruling in May it when said that according to its interpretation of the federal anti-discrimination law known as Title IX, schools and colleges “must allow transgender students access” to restrooms, locker rooms and dormitories that fit their “gender identity.”

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The same week, the Justice Department sued the state of North Carolina over its law, known as House Bill 2 or HB2, which says schools and colleges must maintain restrooms and changing facilities that are segregated by sex, defined by “the physical condition of being male or female which is stated on a person’s birth certificate.”

Now with a new school year approaching, several courts are being asked to decide quickly on the issue.

A federal judge in North Carolina heard arguments Monday from lawyers for the ACLU and Lambda Legal, who called HB2 discriminatory and unconstitutional. They said the state’s law should be put on hold.

“All I want is to use the appropriate restroom in peace, just like everyone else,” said Joaquin Carcano, 28, the lead plaintiff. He is an employee of the University of North Carolina at Chapel Hill and a transgender man. “It’s humiliating that this law separates me from my peers and treats me like a second-class citizen.”

U.S. District Judge Thomas Schroeder said he would rule shortly on whether to temporarily suspend the state law, and then will hear further arguments in November on whether to strike it down entirely.

Meanwhile, the Supreme Court has been considering the appeal from the Gloucester County School Board asking it to put on hold the 4^th Circuit’s decision upholding the “gender identity” rule.

The school board’s lawyers said the dispute goes far beyond a single student’s use of a particular bathroom. The case has “assumed nationwide importance,” they say, now that the administration “seeks to impose its Title IX interpretation on every school district in the nation, and indeed, to extend that interpretation beyond restrooms to locker rooms, showers, single-sex classes, housing and overnight accommodations.”

ACLU lawyers representing Gavin Grimm said the appeal should be turned down. They said the case involves only the 17-year old who sued, and “no irreparable harm will occur if [Grimm] is allowed to use the boys restroom” this year while the school board seeks a full review of the 4^th Circuit’s decision.

The emergency appeal was filed with Chief Justice John G. Roberts Jr., who oversees the 4th Circuit. If he or the full court turns down the appeal, which is likely, it will be seen as an early signal that the administration’s rule on transgender rights will be upheld.

With the death of Justice Antonin Scalia in February, the court’s conservatives can no longer muster a five-member majority needed to issue a ruling, including emergency orders in pending cases. The school board’s lawyers would need at least one vote from the four liberal justices.

The Gloucester case raises a procedural issue that might well draw the attention of the conservative justices. The Obama administration did not seek a new law to clarify the rights of transgender students, or even issue a new regulation. Instead, Education Department lawyers issued a new interpretation of a 1970s-era regulation that had permitted sex-segregated restrooms and locker rooms. The new “guidance” said transgender students must be treated “consistent with their gender identity.”

The school board’s lawyers characterized this as a sleight-of-hand gesture that resulted in a major change in the law. In recent years, the court’s conservatives said they were increasingly skeptical of federal agencies that change the law by announcing new interpretations of old regulations. But without Scalia, they may not have the votes.

So far, the 4^th Circuit Court, based in Richmond, Va., is the only one to rule directly on transgender students and school bathrooms. Since May, lawyers for Texas, Nebraska and 20 other Republican-led states have joined suits challenging the Education Department’s policy.

On Twitter: DavidGSavage

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