The Washington PostDemocracy Dies in Darkness

Battle over transgender student rights moves to high school locker rooms

Max Brennan, 16, with his parents, Larry and Lynn. (Bonnie Jo Mount/The Washington Post)
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Lynn and Larry Brennan’s oldest child could have remained anonymous, just three initials in federal court papers accusing the local school system of discrimination.

But their son was done with secrets, and the pretending that sickened him in those dark days after puberty hit.

Instead, the Brennans’ 16-year-old — honor-roll student, marching-band member and rule follower — is out front trying to rewrite the rules at his high school on Maryland’s Eastern Shore. Sophomore M.A.B. — Max Alexander Brennan — is pressing to open doors to the boys’ locker room in the continuing drive for transgender rights.

“It makes me sound more rebellious than I am,” Max said in an interview at home in St. Michaels, his chocolate Labrador in his lap.

“I’m just a teenager in this small town, in this small state. . . . If I put my name out there, it makes it more personal,” he said.

Max’s case is moving ahead after a federal judge in Baltimore ruled in March that transgender students are protected by federal law from discrimination and found for the first time that Maryland’s constitution includes protections for transgender people.

Before Max, the name widely known in the cause was Gavin Grimm, a Virginia teen whose battle was on track to Supreme Court argument with the government defending an Obama-era requirement that public schools let transgender students use the restrooms matching their gender identity, not their sex at birth.

But the high court took a pass last year after the Trump administration withdrew the government’s support for Grimm.

That shift left unsettled questions in communities and courtrooms throughout the country about the treatment of transgender and non-transgender students in the already awkward realm of high school locker rooms.

A federal appeals court in Pennsylvania takes up the case next month of a non-transgender student who says his privacy rights were violated when officials allowed a transgender boy to change in the boys’ facilities. On the flip side, a pending Florida case involves a transgender boy banished from the boys’ restroom after the school received an anonymous complaint.

Gavin Grimm just wanted to use the bathroom. He didn’t think the nation would debate it.

Within days of the ruling in Baltimore in Max’s case, the schools superintendent in Talbot County, Md., told the Brennans that Max could use the boys’ locker room. The two-paragraph letter said the school board was granting access voluntarily, not settling the legal case or making the formal policy change that Max was seeking.

Max wants a guarantee that locker room access will not be revoked for him or others and that if the board changes its mind, there will be consequences.

The decision in the Grimm case enabled Max to use a boys’ restroom at school, but he still had to use a unisex restroom as his private locker room.

Going there to change for soccer practice meant missing out on the camaraderie of jokes and chatter among his junior varsity teammates.

Going there to change for gym class meant having to explain to substitute teachers why he was late.

“It was forcing me to out myself to people I didn’t know and to make them see me or treat me differently,” Max said.

In court papers, school officials have said they must look out for all students, who have a right to “bodily privacy” and should not be forced to undress in front of the opposite biological sex. A video made by the district in the St. Michaels Middle High School locker room and submitted in court showed there are no privacy partitions.

Schools Superintendent Kelly L. Griffith declined to be interviewed about Max’s case because the lawsuit continues. But in an email, she said, the board “recognizes that gender identity issues involve serious and important considerations for individual students and their families. We recognize that no two students are alike.”

As for locker rooms, she added, “We will be making decisions on a case by case basis.”

Federal judge sides with transgender teen in challenge over school locker rooms

Max, the oldest of three, was raised as a girl. An easygoing kid, he fought wearing dresses and was more interested in his two brothers’ trucks and trains than Barbie dolls, his parents said. The family moved seven years ago from New Jersey to Maryland’s Eastern Shore, attracted to the schools and quaint waterfront town that draw D.C.-area transplants and vacationers.

A slide into despair

By sixth grade, Max knew he was a boy. The lie of living life as a girl made him physically ill, he said in court papers, and increasingly, he kept to himself, sliding into deep despair.

A therapist diagnosed Max’s feelings as gender dysphoria. His parents learned about it after Larry Brennan found a draft of a letter Max had crafted to tell his parents in essence: “I am a boy.”

His mother, an occupational therapist, mourned the daughter she thought she had and was nervous about Max’s safety. His father, who works in real estate, initially thought his child was just confused.

The Brennans quickly rallied behind Max, whose mood slowly improved. He legally changed his name and birth certificate. His younger brothers, now 14 and 11, helped choose the name Max. He began weekly testosterone shots and last year had a double mastectomy.

“I had this secret the whole time, and I could finally let it go,” said the once withdrawn Max, who had a leading role in the spring performance of “James and the Giant Peach” and dreams of studying theater or psychology in college in New York.

At the start of seventh grade, the Brennans talked with school officials, who were compassionate and supportive of Max.

The principal organized a presentation for teachers. With the principal, the family made plans for Max to go public on his 13th birthday and to begin using a unisex bathroom in the nurse’s office.

Students began calling their classmate by his new name. A pronoun occasionally got mixed up unintentionally, but it was understandable in a class of about 60, most of whom had known Max for years as a girl.

As eighth grade approached, Max said, he was ready to use the facilities designated for boys. The day before the school year started, though, his mother had to deliver bad news. The school board insisted that Max continue to use the private, unisex bathroom or the girls’ restrooms and locker room, court papers show, and later explained its “obligation to consider the rights of all of its students.”

Max’s parents consulted lawyers for the first time, and at school, Max mostly avoided the restroom.

It was humiliating, he said in court filings, recalling “weird looks” from other students when he ducked into gender-neutral facilities no other students used.

He never stepped into the girls’ locker room. The girls would have complained, Max said, his cheeks flushing even now at that scenario.

Ruling and reaction

That spring of 2016, the U.S. Court of Appeals for the 4th Circuit, which hears cases from Virginia and Maryland, sided with Grimm, and the Talbot County superintendent announced in a letter to parents that the board had to follow the court’s directive. Max could use the boys’ restroom.

Federal appeals court sides with transgender teen, says bathroom case can go forward

The change prompted some public complaints, including a call for the superintendent to resign, a letter of protest and testimony from three people at a board meeting, including a local pastor concerned about the safety and privacy of non-transgender students.

But the locker room was still off limits, and Max went to court with the help of the LGBT advocacy group FreeState Justice, a step he and his parents never imagined taking.

“We’ve been following his lead the whole time, while trying to guide him as parents,” Lynn Brennan said.

One friend and teammate, Jeremy Foy, told the court, “all the students that I know of are cool with the fact that M.A.B. is a boy,” and besides, Foy said in a declaration, students don’t typically shower after games or practice and strip only to their underwear to change.

School officials stressed in their filings that locker rooms are inherently different from restrooms and that students have the right to “shield one’s body from exposure to the opposite sex,” particularly during adolescence when students are “arguably at the peak of discomfort and vulnerability with regard to the physical, emotional and psychological aspects of human sexuality.”

Federal judge sides with transgender teen in challenge over school locker rooms

On a Monday afternoon in March, Max’s mother once again broke news to him as he returned home from school.

Look at page 37, she told him, handing him a thick document topped by his initials.

It was the Maryland federal court ruling, with U.S. District Judge George L. Russell III writing that students concerned about changing next to a transgender classmate have the option of using a private restroom or stall.

Barring Max from the locker room, however, “singles M.A.B. out, quite literally because it does not apply to anyone else at the high school, and marks him as different for being transgender,” Russell wrote and wrapped up with a line from Grimm’s case:

“M.A.B.’s claims come down to a ‘boy asking his school to treat him just like any other boy.’ ”

But the early ruling in his favor has not eased Max’s worries about locker room access for him or the students who would come after him. Gym class is a graduation requirement, and he is set to take it this fall.

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