08:16, May 17 268 0 abajournal.com

2017-05-17 08:16:04
ABA files amicus brief in transgender school bathroom case

The American Bar Association has filed an amicus brief in the case of a transgender teenager who sued his Virginia school over which bathroom he was allowed to use.

In G.G. v. Gloucester County School Board, Gavin Grimm argues that his school violated his equal protection rights and Title IX of the Civil Rights Act by requiring him to use the girls’ restroom at Gloucester High School. The case was accepted by the U.S. Supreme Court, but remanded after President Donald Trump rescinded his predecessor’s policy directing schools to let transgender teens use the bathroom of whichever gender they identify with. In light of that change, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals is reconsidering whether the school board violated Grimm’s rights under Title IX.

In the amicus brief (PDF), the ABA urges the 4th Circuit to find that discrimination against transgender students is sex discrimination under Title IX because it’s based on stereotypes requiring conformity to the sex assigned to them at birth.

The school board’s bathroom policy is not neutral, the brief says; rather, it singles out transgender students like Grimm. By forcing someone who identifies as a boy to use either the girls’ room or the school nurse’s single-person restroom, the brief says, the policy stigmatizes him and excludes him from an essential school facility. In this case, it notes, it has also led to multiple urinary tract infections. This is the kind of harm that Title IX was intended to prevent, the authors say.

The policy “indulges overbroad generalizations about how adolescents assigned at birth to one sex pose either a danger or temptation to those assigned to the other sex,” the brief says. “And that violates the Supreme Court’s unwavering principle [in 1996’s U.S. v. Virginia] that ‘state actors controlling gates to opportunity … may not exclude qualified individuals based on ‘fixed notions concerning … males and females.’”

Furthermore, the brief argues, permitting discrimination against transgender students makes it harder for those students to succeed academically, preventing them from reaching their full academic and professional potential. And it wastes an opportunity to teach other students that transgender people should be treated with tolerance and respect, the brief notes.

It’s unclear whether the change in federal policy will affect the 4th Circuit’s decision on remand. In April, the appeals court lifted an injunction requiring the school board to let Grimm use the boys’ restroom, but two of the three judges on that panel also wrote a concurrence praising the case as a “struggle for justice.”

“G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins,” wrote Judge Andre Davis, joined by Judge Henry Floyd. “By challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders.”

Grimm, the concurrence noted, will finish high school this year.