by Bennett Kaspar
Unless you’ve been living under a rock this year, you’ve probably heard some discussion on the issue of transgender people and public restrooms. If you’re not familiar with the basic issues underlying the controversy, here is a great summary of the issue, which helps explain why bathroom rights reach far beyond the stall for transgender people.
The culmination of the Great 2016 Bathroom Debate came this week when the Supreme Court announced it would hear arguments in Gloucester County School Board v. G.G., a Fourth Circuit case that was decided, and then appealed, earlier this year. The G.G. case is just one of many bathroom cases taken to the courts this year, and the Supreme Court’s decision has the potential to reach beyond the schools in Gloucester County.
Background on Gloucester County v. G.G.
Gavin Grimm, now 17, is a female-to-male (FTM) transgender student attending public school in Gloucester County, Virginia. He sought access to the boys’ bathroom at his high school, but the County School Board said no, forbidding from using facilities designated for males. Instead, the School Board told Gavin that he would have to use private facilities while at school, isolating him from his peers. Gavin, through his mother (because he is a minor), sued the School Board. Gavin’s suit asked for an injunction against the School Board’s decision to deny him access; in other words, Gavin’s lawsuit asks the court to step in and prevent the School Board from putting its decision to bar transgender students from single-sex facilities in schools into practice.
After an initial battle in the District Court (the lowest level federal court) over whether the evidence presented by Gavin in support of his case was admissible, the Court of Appeals sent the case back to the District Court and urged it to consider the position of the U.S. Department of Education. When it reconsidered the case according to the Court of Appeals’ direction, the Virginia District Court agreed with Gavin’s position and granted the injunction in his favor, blocking the School Board’s rule from taking effect. The School Board then appealed the decision to back to the Fourth Circuit Court of Appeals, the federal court hearing appeals from federal courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, and from federal administrative agencies.
The Fourth Circuit weighed in and determined that the School Board’s decision not to let Gavin use the boys’ bathroom violated Title IX of the education code. Title IX is the law which protects public school students from discrimination “based on sex.” The U.S. Department of Education’s Office for Civil Rights (OCR) issued an opinion letter in Gavin’s case, stating that the term “sex” in Title IX refers to gender identity. The Fourth Circuit accepted the OCR’s opinion letter as controlling interpretation on the law, and used it as a basis to rule in Gavin’s favor.
Following that ruling, the School Board petitioned the Supreme Court to block the Court of Appeals decision in Gavin’s favor from taking effect until the Supreme Court could decide the issue, arguing that allowing Gavin to use the boys’ restroom while the case made its way to the Court could cause parents to pull their children out of school. The Supreme Court agreed and blocked the decision from going into effect until it has ruled on the case. Right now, Gavin has two options should he need to go to the bathroom at school—use a single-stall bathroom or visit the bathroom in the nurse's office. As Gavin stated in a recent interview, that ruling can’t come fast enough:
"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," Gavin wrote. A few weeks ago, he had to go to the bathroom at an evening school football game. "Suddenly a night out with friends was marred by the realization that someone was going to have to take me to a gas station if I needed to use the restroom," he added.
“On the Basis of Sex”
Both Title IX and Title VII, the laws which grant protection from discrimination by public (state, local, and federal government) actors, protect persons from discrimination “on the basis of sex.” Though initially this was interpreted simply as meaning that the law prevented discrimination based on whether someone was born male or female, the interpretation of the term “sex” has evolved in recent years to encompass gender identity as well. The OCR has maintained this interpretation since 2014, but the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, the Department of Housing and Urban Development, and other agencies have also adopted this interpretation.
According to the reasoning of these agencies, discriminating against someone who is transgender, or whose gender identity doesn’t match their gender assigned at birth, is the same as discriminating based on birth sex. By this reasoning, the Gloucester County School Board was discriminating against Gavin, a male, because he was assigned a female gender marker at birth based on the appearance of his biological sex. A recent article from The Washington Post summarized the position as this:
Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What’s the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX.
Opponents of this position, however, often argue that this interpretation is far away from the original intent of Congress, and that if sex also includes gender identity, it should be up to Congress to clarify this position, not the courts.
The Issues Before the Supreme Court
There are two issues the Supreme Court will address when it takes up G.G. in the next term.
- The first asks whether the Fourth Circuit Court of Appeals was correct when it deferred to the U.S. Department of Education’s interpretation of the word “sex” in its decision.
Under federal law, agencies like the Department of Education have the power to make official rules, which have the effect of law, provided they follow certain administrative procedures. Outside of making official rules, these agencies can offer opinion letters and guidance, but these receive less deference in the courts because they are not made through a formal rulemaking process.
The attorneys for the Gloucester County School Board will argue that the Fourth Circuit was wrong when it relied on OCR’s letter, which stated discrimination based on transgender status was discrimination based on sex. The School Board will argue that not only should this letter not bear the force of law, but that it represents a departure from the traditional definition of sex and that the law should be defined by Congress, not the courts. Attorneys from the American Civil Liberties Union (ACLU), who are representing Gavin in this matter, will argue that the OCR’s letter is merely a clarification of the positions it has held for the last several years, and that this was well within the OCR’s authority to do in this instance.
If the Supreme Court agrees with Gavin’s position that the OCR’s letter deserved deference from the Court of Appeals, then the case is effectively over, with Gavin winning the ability to use the boys’ restrooms at school. This will also have the effect of validating other courts that have relied on the OCR letter to support the same position.
2. If the Supreme Court determines that the Court of Appeals was incorrect when it gave deference to the OCR letter, then the Supreme Court will have the opportunity to decide the second issue-- whether gender identity discrimination falls under sex discrimination in Title IX.
This second question has much broader consequences and, if the Court agrees that gender identity discrimination is prohibited by Title IX, its decision will likely invalidate other transgender bathroom laws like the much-scorned H.B. 2 in North Carolina, which covers restrooms in schools that are governed by Title IX.
Some are optimistic that the Court will make an affirmative statement that discrimination based on gender identity is the same as discrimination based on sex, thus granting protections to transgender people that they have not previously enjoyed under the law. However, the Court is generally reluctant to create law through judicial interpretation of a statute where Congress would be able to do the same by simply rewriting the law. Unlike the same-sex marriage issue, which involved constitutional rights, the issues raised in G.G. come from statutes, which are far easier to change than the Constitution. There are also potential problems with the sex discrimination argument in the transgender bathroom context that were not at issue in the same-sex marriage cases that could lead the court to reject the Court of Appeals’ reasoning.
Lasting Effects of a Ruling
Since the OCR issued its statement clarifying that discrimination based on gender identity is sex discrimination, 23 states have since sued the Department of Education. They argue that Title IX applies only to sex discrimination, not gender identity discrimination, and that allowing trans kids to use the bathrooms of their choice could violate the privacy rights of other children. It is likely that there will be no decisions made in any of those cases until the G.G. case has been resolved in the Supreme Court.
With the Court still consisting of only 8 Justices following the death of Antonin Scalia, it is possible that the decision will be a 4-4 split. Should that happen, the Fourth Circuit’s ruling would remain in place, and Gavin will be able to use the boys’ restroom before he graduates next year. However happy that outcome would be for Gavin, it would not have the sweeping effect that an actual ruling from the Court would give to transgender students across the country.
Stay tuned for more updates as the case unfolds before the Supreme Court.
Bennett Kaspar is a transgender lawyer from Los Angeles, California, who specializes in employment and labor law. He received his J.D. from the University of California, Irvine School of Law in 2014, and has helped numerous employers on a variety of issues related to counseling and litigation. Find more by Bennett at his blog, www.thatguykas.wordpress.com.