The U.S. Supreme Court announced Friday it will hear a school board’s appeal of a lower court decision affirming transgender students’ access to facilities appropriate for their gender identity — and if it lets that decision stand, it will be a major victory for trans students.
Gavin Grimm, a transgender boy who attends Gloucester High School in Virginia, and his legal team would have preferred that the high court not take up the case, as that would have meant the earlier decision stood and could go into effect immediately.
On a conference call with reporters and one of his his attorneys Friday afternoon, Grimm said he was disappointed that he will have to continue going through high school being singled out from other students and constantly planning his restroom trips. "But I'm not afraid and I'm not discouraged," he added.
If the ruling by the U.S. Court of Appeals for the Fourth Circuit had gone into effect, Grimm would have been assured of access to the boys' restrooms; he is currently restricted to using single-occupancy restrooms, and he must plan his day around the location of those. The Fourth Circuit ruling does stand and remains precedential for the entire circuit, which consists of Virginia, West Virginia, Maryland, North Carolina, and South Carolina. But a favorable ruling by the Supreme Court would affect the whole nation.
"We are going into this case being excited to tell the Supreme Court who Gavin is and who trans kids are," American Civil Liberties Union staff attorney said Joshua Block during the call.
The national ACLU and its Virginia affiliate sued the Gloucester County School Board in 2015 because of a policy requiring trans students to use only single-stall restrooms. The board adopted the policy in December 2014, when Grimm was in 10th grade, even though he had been using the boys’ restroom for nearly two months. He has gone through high school under the policy ever since then and is now a senior.
The ACLU argued that the policy violates the Fourteenth Amendment to the U.S. Constitution and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination by schools. The federal Department of Education and Department of Justice have held that sex discrimination includes discrimination based on gender identity.
A U.S. District Court dismissed Grimm’s suit, but the U.S. Court of Appeals for the Fourth Circuit begged to differ. In April a three-judge panel of the appeals court ruled in Grimm’s favor, and in May the 15 judges of the court declined the school board’s request that the full court reconsider the case. So the school board appealed to the Supreme Court, which in August put the appellate ruling on hold. If the high court had decided not to hear the case, the hold would have been lifted.
The Supreme Court did not announce when it will hear arguments in the case. Block said he expected it to be scheduled early in 2017. If the court schedules cases in the order in which it has accepted them, which is customary, it would likely be in February, but the justices have been delaying some cases, he noted.
The court also just has eight members right now, as the vacancy left by the death of ultraconservative Justice Antonin Scalia has not been filled. The Republican-controlled Senate Judiciary Committee has refused to hold a hearing on President Obama's nominee to fill the vacancy, Judge Merrick Garland. As to whether having an eight-judge court hear the case would affect the decision, Block told reporters, "Your guess is as good as mine." One thing that is known: If the Supreme Court's ruling in any case is a 4-4 tie, the lower court ruling stands.
Anthony Kennedy, considered the swing justice on the court, has been a champion of LGB rights — among other things, he wrote last year's marriage equality ruling — but reporters noted that less is known about his stance on the rights of transgender people. Block, however, said he expects that Kennedy will continue to be a strong supporter of individual rights generally.
Several courts have ruled in favor of trans rights since 2000, Block said, and "this might be an opportunity for the Supreme Court to join that chorus of decisions."
He stressed that even though the Supreme Court is hearing the appeal of the Fourth Circuit decision, the decision remains a precedent for the circuit. That means judges would be bound by it in ruling on, for instance, North Carolina's infamous House Bill 2.
HB 2, passed in March of this year, bars trans people from using restrooms, locker rooms, and other sex-segregated facilities that match their gender identity, when those are located in government buildings, including public schools as well as state colleges and universities. The law has several other provisions, including one that prevents cities and counties from enacting or enforcing LGBT-inclusive antidiscrimination ordinances, but the Fourth Circuit ruling addresses only restroom use. Gov. Pat McCrory, who signed HB 2 into law, has said North Carolina will obey the final federal court ruling. Meanwhile, a federal judge has blocked the University of North Carolina from enforcing HB 2 against the trans people who have brought a lawsuit over it, while the case is ongoing.
Grimm's case will be watched closely by other transgender young people. One of them is Ash Whitaker, a trans boy who brought a case against his school district in Wisconsin. He is represented by the Transgender Law Center and private attorneys.
“Gavin’s case helped give me the courage to be myself at school, and I hope the Supreme Court will send a clear message to schools across the country that they can’t get away with treating students like us differently just because we’re transgender,” Whitaker said in a Transgender Law Center press release today.
Whitaker's school "had forced him to use a separate bathroom from all other students, refused to refer to him as male, and even proposed forcing transgender students to wear a green sticker or wristband to better monitor their restroom use," notes the press release. In September a federal court issued a preliminary injunction against the school, requiring it to treat Whitaker like all other boys as his case proceeds.
“Schools cannot harass, discriminate against, and single out students because they are transgender, and we look forward to Gavin, backed by the ACLU, having his day in court,” said the law center's executive director, Kris Hayashi, in the same release. “Transgender students like Gavin in Virginia and our 17-year-old client Ash Whitaker in Wisconsin just want to get an education and be treated fairly like anyone else.”
Grimm has stressed that he did not seek public attention and just wanted to get his education while having his basic needs accommdated. "I did not choose to announce to the news media that I am transgender," he wrote in a commentary published in The Washington Post this week. "My school board made that decision for me. But now that I am visible, I want to use my position to help the country see transgender people like me as real people just living our lives. We are not perverse. We are not broken. We are not sick. We are not freaks. We cannot change who we are. Our gender identities are as innate as anyone else’s."
And even though this was not his goal, Grimm has become famous — and honored. This week Time magazine named him to its list of the 30 most influential teens.