U.S. District Judge George L. Russell III is the latest judge, and the first in Maryland, to find that the right of a transgender student to use restrooms and locker rooms matching his or her gender identity is protected by federal and state law.
The policy barring Brennan from the boys’ locker room “does not apply to anyone else at the high school, and marks him as different for being transgender,” the judge wrote in a 40-page opinion issued this week that allows Brennan’s lawsuit to move forward.
In a statement, Brennan, a 15-year-old who attends St. Michaels Middle High School, called the decision a “great step in the right direction.”
The decision comes after the Trump administration last year abandoned Obama administration guidelines that directed public schools to accommodate transgender students. The Supreme Court last March put off ruling in the separate case of Virginia transgender teen Gavin Grimm, delaying a decision about whether federal laws forbidding discrimination on the basis of sex also extend to gender identity.
In his opinion, published Monday, Russell said that in addition to the Equal Protection Clause of the U.S. Constitution, Maryland’s constitution prohibits public schools from excluding transgender students from using the same facilities as their non-transgender classmates.
“I am hopeful that this case will not only help change policy for the better but help the students who are bound to come after me,” Brennan said.
His attorney, Jennifer Kent of FreeState Justice, said, “School systems in Maryland should know the law and should be protecting students who are transgender from discrimination, not singling them out for separate and unequal treatment.”
Debbie Gardner, a spokeswoman for the Talbot County Public Schools, the district to which St. Michaels belongs, said she could not comment because of the litigation.
In Virginia, the case of former Gloucester High school student Gavin Grimm is pending. The Richmond-based U.S. Court of Appeals for the 4th Circuit had deferred to guidance issued by the Obama administration and overruled the Gloucester County School Board’s policy that students must use restrooms that correspond with their “biological sex.” After the Supreme Court put off ruling, the 4th Circuit sent Grimm’s case back to a lower court in part to determine whether Grimm — who has since graduated — has enough of a tie to his alma mater to pursue the case.
Initially, Brennan’s school required him to use one of three “gender neutral” restrooms. After the 4th Circuit ruling, the school allowed him to use the boys’ restrooms but prevented him from using the boys’ locker rooms. The designated restroom was far away from the locker room, according to court filings, making Brennan late for class if he wanted to change to gym clothes.
Attorneys for the school board said the policy does not violate the Equal Protection Clause because it treated Brennan like every other student, requiring him to use the locker room of his birth sex. The school system also raised concerns about the privacy of other students changing in the locker room with Brennan.
Russell disagreed. The judge cited Brennan’s assertion the locker rooms have individual stalls for changing and for toilets.
Brennan has had to disclose his transgender status to substitute teachers to avoid being penalized for arriving late to gym class, and his grade suffered when he did not change clothes for gym class because he “did not want to deal with the ‘stigma and impracticality’ of changing in the designated restroom,” Russell wrote.
In the ruling, Russell noted that the courts have had to step in to stop enforcement of federal policies that violate the rights of transgender people.
He pointed to a recent decision by a fellow Baltimore judge who barred the Trump administration from enacting a proposed ban on military service by transgender men and women.
The judge denied Brennan’s request to immediately block enforcement of his school’s policy before the broader case is resolved. Brennan is not enrolled in gym class for the current school year, and the judge said that for that reason, no harm from the policy is “imminent.”