WASHINGTON — A school district in Virginia filed an official petition for appeal with the U.S. Supreme Court on Monday, requesting that it declare that the U.S. Department of Education lacks authority to dictate that public schools must allow those who identify as transgender to use the restroom with the opposite sex.
“The term ‘gender identity’ is nowhere in Title IX,” the writ of certiorari reads. “If ‘sex’ signifies, not biology, but rather one’s ‘internal’ sense of maleness or femaleness, the whole concept of permissible sex-separation collapses.”
As previously reported, Gavin Grimm, now 17, told reporters in December 2014 that she began using the boys’ restroom after obtaining permission from the school principal when she expressed disapproval over being forced to use the nurse restroom.
“I’m not a girl. I’m not using the girl’s restroom,” Grimm stated. “So I said, ‘Hey, where can I use the restroom?’ … And so they said, ‘Use the nurse’s room,’ and at the time I was fine with that, because I was still afraid—I didn’t know how my peers would react. So, I didn’t want to push the envelope any further than I had to all at once.”
But she said that the option soon became a problem.
“The nurse’s office is at least a three minute walk from the class I have closest to it. It took a substantial amount of time out of my class time, and it was embarrassing,” Grimm said. “When you’re gone for 15 minutes at a time to use the bathroom, what are high schoolers gonna think? It’s humiliating and it’s alienating.”
The student therefore asked the principal about the matter, who suggested that Grimm go ahead and use the men’s restroom since she identifies as a boy. But some of the parents of the male students soon learned about the allowance, and the issue turned up before the school board.
Due to the concerns of parents, the board voted to approve a policy requiring students to utilize the restroom that correlates with their biological gender, or to use a private bathroom.
But in response, Grimm sued the Gloucester County School Board with the aid of the American Civil Liberties Union (ACLU) in an effort to overturn the policy.
“By excluding Gavin—a transgender boy—from the boys restrooms because the school board does not deem him to be ‘biologically’ male, the school board, under color of state law, has treated and continues to treat Gavin differently from similarly situated students based on his gender,” the suit asserted.
Last September, District Court Judge Robert Doumar, appointed to the bench by then-President Ronald Reagan, ruled against Grimm, disagreeing with the ACLU that the board had violated Title IX with its restroom policy.
“Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation,” Doumar wrote.
The ACLU appealed the decision to the Fourth Circuit Court of Appeals, which ruled 2-1 in favor of Grimm in April by pointing to the Obama administration’s recent interpretations of the federal statute.
It then sent the case back to Doumar, who was instructed to rule in light of how the U.S. Department of Education views the federal statute. Doumar consequently ordered the board to allow Grimm to use the boys’ restroom.
The the Gloucester County School Board then appealed the order to the U.S. Supreme Court, asserting that it 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.”
Earlier this month, the court granted the emergency injunction, blocking Grimm from using the boys’ restroom—at least for now as it decides whether or not to accept the board’s appeal.
On Monday, attorneys for the board submitted their formal petition to the court, arguing that the U.S. Department of Education did not follow federal requirements in issuing its guidelines on restroom use.
“Some regard transgender restroom access as one of the great civil rights issues of our time,” they wrote. “But that makes it all the more important to insist that federal officials follow the procedures for lawmaking prescribed in the Constitution and the Administrative Procedure Act.”
The petition also noted that intervention by the Supreme Court is needed on the matter since there is disagreement among the lower courts. It pointed to last week’s decision of a federal judge in Texas to block the Obama administration from enforcing its directives.
“The Texas decision highlights the urgent, nationwide importance of the issues presented in this petition. Every recipient of Title IX funds throughout the nation—ranging from universities to elementary schools—is now being substantially affected by the disagreement among the lower courts,” it read.
ACLU attorney Josh Block said in a press release following the submission, “We look forward to filing our response, and we hope the court denies review and allows Gavin to finally start using the boys’ restroom again.”