Supreme Court will decide on transgender rights in Virginia school case

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The Supreme Court agreed Friday to tackle transgender rights for the first time, taking a case that will determine whether schools nationwide may force students to use restrooms that match the gender on their birth certificates.

The case, stemming from a Virginia dispute involving a transgender boy, will be heard early next year, either by the current eight-member court or with a new ninth justice chosen at the behest of the winner of the presidential election.

The justices will hear an appeal from the Gloucester County School Board, which had adopted a rule requiring students to use the restrooms that correspond to their “biological genders.”


UPDATE: Supreme Court puts off ruling on rights of transgender students »

Gavin Grimm, a transgender boy, sued the school district, alleging that this policy amounted to illegal sex discrimination. He received the support of the U.S. Education Department and won a 2-1 ruling from the 4th Circuit Court of Appeals based in Richmond, Va.

The justices now will decide whether to uphold the Obama administration’s interpretation of an existing sex-discrimination statute or instead rule the agency has no authority to set rules for how schools and colleges should treat transgender students.

Grimm, the 17-year old plaintiff, said he did not expect that his request to use the boy’s restroom would end up in the Supreme Court.

“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 said in a statement released by the American Civil Liberties Union, which is representing him.

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“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,” he said.

While the 4th Circuit ruled in his favor, the Supreme Court in August voted 5 to 3 to put that decision on hold while the justices review the case.

The courts’ three most liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — dissented. Justice Stephen G. Breyer said he voted with the court’s conservatives “as a courtesy” so the full court would have an opportunity to decide the issue.

The legal question before the court involves whether judges should defer to agencies that reinterpret their own regulations.

In 1972, Congress passed the Title IX amendment, which said schools and colleges may not discriminate against students on the basis of sex. The law is usually cited as a landmark in the history of women’s sports.

The regulations do not prevent schools from providing separate toilet, locker room and shower facilities for girls and boys, or for that matter, having separate women’s and men’s teams.


But last year, an Education Department lawyer issued an opinion letter in Grimm’s case declaring that denying him the use of the boy’s restrooms was illegal sex discrimination in violation of Title IX. It marked the first time the regulation had been used in such a manner to protect transgender students.

In May, the Education Department issued a national guidance letter advising all schools and colleges that, under federal law, they “must allow transgender students access” to restrooms, locker rooms and dormitories that fit their “gender identity.”

Lawyers for the Gloucester County School Board called the guidance an “extreme” and unwarranted change in the law. They argued that schools had traditionally provided separate restrooms for students based on their biological gender. And they said the Obama administration officials did not have the authority to change the law without the approval of Congress.

The 4th Circuit Court disagreed, deciding it should defer to the agency officials who were in charge of enforcing the Title IX law.

Shortly after that decision, a federal judge in Texas ruled in favor of Texas and more than 20 other conservative states that sued to challenge the Education Department’s policy. The judge issued a nationwide order blocking its enforcement.

That decision may have helped persuade the justices that they needed to clarify the law.

But Grimm’s lawsuit is limited. He sought only use of the boy’s restroom. He did not raise the issue of locker rooms or showers. And the school district in response offered him the use of a separate unisex restroom.


Following the court’s normal schedule, arguments in the case — Gloucester County School Board vs. G.G. — would be heard in late February or March.

If the Senate moves quickly after the election, it could vote to confirm Judge Merrick Garland, President Obama’s nominee, and he could be seated in time to participate in the transgender rights case.

But it is also possible the ninth seat may remain vacant in the spring, creating the prospect the justices could split 4 to 4 and be unable to rule.

On Twitter: DavidGSavage



2:45 p.m.: This article was updated with more reaction and background.

This article was originally published at 1:15 p.m.