WASHINGTON — The U.S. Supreme Court has agreed to hear a Virginia school board’s appeal of a ruling siding with the Obama administration’s demand that it allow a female student who identifies as male to use the boys’ restroom. The decision will affect public schools nationwide.
The eight justices said on Friday that the case will be heard and decided in 2017. It will be one of the most major decisions of the year.
The appeal will be limited to the following two questions from the school board’s petition to the court: “[S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?” and “With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?”
The student at the center of the case, who goes by the name Gavin Grimm, will not be able to use the boys’ restroom in the interim.
“I continue to suffer daily because of the school board’s decision to make my bathroom use a matter of public debate,” she said on Friday in an op-ed published by the Washington Post. “I feel the humiliation every time I need to use the restroom and every minute I try to ‘hold it’ in the hopes of avoiding the long walk to the nurse’s office.”
As previously reported, Grimm, now 17, told reporters in December 2014 that she began using the boys’ restroom at Gloucester High School after obtaining permission from the 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 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.”
In August, the court granted the emergency injunction, blocking Grimm from using the boys’ restroom at least until it decided whether or not to accept the board’s appeal.
“Schools have a duty to protect the privacy and safety of all students. That’s a compelling reason for the Supreme Court to review the 4th Circuit’s decision in this case, especially when other courts—including the 4th Circuit itself previously—have upheld that principle,” Alliance Defending Freedom (ADF) Senior Counsel Gary McCaleb said in a statement on Friday.
“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” he said. “The Supreme Court should reverse the 4th Circuit’s ruling, which is out of step with the law and previous federal court precedent.”
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