A school board that has been ordered to allow a transgender student to use the boys’ high school bathroom has appealed to the U.S. Supreme Court to halt the order, arguing that it will cause “irreparable harm” and violate the privacy of students.
The Gloucester County, Va. School Board, which is being sued for passing a policy that barred a transgender student from the boys’ bathroom, said it hopes the U.S. Supreme Court will weigh in on the matter. In the interim, it is asking the high court to allow it to continue banning the transgender boy from the boys’ room while attorneys prepare a writ of certiorari to the nation’s highest court. Currently, the court’s order would mean transgender students could use the bathroom corresponding with their gender identity when school returns for the coming academic year.
Gavin Grimm, a 17-year-old rising senior at Gloucester High filed a lawsuit against the School Board last year after the board passed a policy requiring students to use bathrooms based on their “biological gender.” Grimm alleged that the policy barring him from the boys’ bathroom violated his civil rights and ran afoul of Title IX, which bans sex discrimination in public schools.
The U.S. Court of Appeals for the 4th Circuit sided with the teen in April, deferring to the Obama administration’s position that transgender students are entitled to use bathrooms that match their gender identity under Title IX. It was the highest court to rule on the question of how to accommodate transgender students in public schools. A federal judge later granted Grimm a preliminary injunction ordering the School Board to allow Grimm to use the boys’ bathroom while the case proceeds.
In the wake of the federal appeal’s court ruling, the School Board said it would take the case to the U.S. Supreme Court. The issue is one that has been hotly debated in schools, courts and state legislatures across the country.
Transgender students and their advocates say being able to use the bathroom that matches their gender identity is essential for them to feel comfortable and for their well-being. Others say that allowing students to use bathrooms that do not correspond with the sex on their birth certificates raises safety issues and violates the privacy of other students.
The Obama administration in May directed the nation’s public schools to allow transgender students to use bathrooms and locker rooms that match their gender identity or risk losing their federal funding. Twenty-one states have sued to overturn the directive.
The Gloucester County School Board said the case should be halted because the Supreme Court should weigh in on the matter; its earlier appeals for a stay were unsuccessful, with a federal appeals court denying the request Wednesday.
In a filing to the high court Wednesday, the School Board again asked for the case to be paused — and to keep Grimm out of the boys’ bathroom — until the case concludes.
Allowing Grimm, who was born female but now identifies as a boy, to use the boys’ bathroom will cause “irreparable harm to the Board, to the school system and to the legitimate privacy expectations of the district’s schoolchildren and parents alike.”
The School Board said the appeals court should not have just deferred to the Obama administration’s position on the matter. It pointed out that for more than 40 years, Title IX has permitted separate bathrooms, locker rooms and showers for boys and girls.
“No one ever thought this was discriminatory or illegal. And for decades our Nation’s schools have structured their facilities and programs around the sensible idea that in certain intimate settings men and women may be separated” for the sake of privacy, the board’s attorney wrote.
The School Board also rebutted claims from Grimm’s attorney that being banned from the boys’ bathroom would cause him harm, arguing that the high school made reasonable accommodations by providing him access to unisex bathrooms.
In an statement, Claire Guthrie Gastañaga, the executive director of ACLU-VA, said the school board members failed to recognize the damage they were doing to Grimm.
“It is sad that the school board members and their lawyers have so little regard for the impact their misguided actions are having on a real teenager’s life,” she said. “We will continue to stand with Gavin and other young people suffering such cruelties and indignities.”
Joshua Block, an attorney for the American Civil Liberties Union, also has disputed the notion that allowing Grimm to use the boys’ bathroom would cause the sort of harm the school board describes.
“The only thing this injunction does is let Gavin use the boys’ restroom,” Block said last week. “The notion that simply allowing one boy to use the restroom during his senior year of high school would cause the sky to fall is impossible to take seriously.”