—These are tough times to be the administrator of a public school system. While in Charles County, Maryland, a Christian family and their conservative public interest law firm are
suing the public school system in federal court for allegedly indoctrinating their daughter into Islam
, in Virginia the ACLU is suing the Gloucester County school system for allegedly violating a transgender student's constitutional rights by requiring him to use “alternative, private” restrooms.
At 15 years old, Gavin Grimm stood before the Gloucester County School Board—twice—and listened to community members discuss his anatomy in a public forum.
“I was terrified,” Grimm, now in his junior year at Gloucester High School, said this week. “I was in a room full of adults who thought it appropriate to have this sort of vulgar discussion, who would clap or cheer after every derogatory statement, of which there were many.”
Grimm, who was born a female, lives and identifies as male—and has been taking hormone therapy as recommended treatment for gender dysphoria. But the Gloucester school system has prohibited him from using the boys’ restrooms at the high school.
On Wednesday, lawyers for the American Civil Liberties Union appeared before the U.S. Court of Appeals for the 4th Circuit to argue that the school district is violating Grimm’s constitutional rights by requiring transgender students to use “alternative, private” restrooms.
The ACLU, which represents Grimm, said Gloucester’s policy violates federal nondiscrimination laws under Title IX and the Fourteenth Amendment of the U.S. Constitution. This is the first time that a federal court of appeals is considering the issue.
“Both sides presented arguments, and we now have to wait for the court to issue a ruling,” said Bill Farrar, director of public relations at the ACLU of Virginia. “Our best guess is that will take a couple of months.”
As Grimm began his sophomore year in fall 2014, he and his mother notified school administrators about Grimm’s gender identity, and he was given permission to use the boys’ bathroom. Grimm did so for almost two months without any incident, according to a brief the ACLU filed with the 4th Circuit Court of Appeals.
But on Dec. 9, 2014, the School Board adopted the new policy by a vote of 6-1, and Grimm has had to use an isolated restroom in the nurse’s office ever since.
“The trek to the restroom in the nurse’s office each time it was necessary was similarly humiliating, similarly upsetting and ‘othering’ and dysphoria-inducing,” Grimm said in a statement Wednesday. “The only difference was that it was just slightly less conspicuous.”
Specifically, Grimm said the School Board passed a policy limiting the use of restroom facilities to students with “corresponding biological genders” and required students with “gender identity issues” to use alternative facilities.
“Even if we use the separate but equal framework, it’s clearly not equal,” Joshua Block, senior staff attorney for the ACLU, said at a press conference after the appeals court hearing. “It’s basically a restroom from a converted closet that only Gavin has to use because other people hypothetically object to using the same restroom as him.”
In June, the ACLU filed a motion for a preliminary injunction with the U.S. District Court in Newport News. It asked the court to rule in time for Grimm to be able to use the same restroom as other boys at Gloucester High School when classes resumed for the 2015-16 school year.
But in September, U.S. District Judge Robert Doumar denied the injunction and dismissed Grimm’s claim under Title IX. The ACLU appealed that ruling to the 4th Circuit Court in Richmond. A panel of three appellate judges—Paul Niemeyer, Henry Franklin Floyd and Andre Davis—heard the case Wednesday.
“Schools can and should have privacy protections, but what they can’t do is exclude transgender students,” Block told the judges during the 45-minute hearing.
Attorney David Corrigan, who represents the Gloucester School Board, said the school system’s policies are not discriminatory because the alternative unisex restrooms are open to anyone.
“Our position is that all students are treated the same,” he said.
After the hearing, Block described Grimm as a courageous young man.
“Gavin, before he met anyone from the ACLU, was standing up by himself at a School Board meeting in front of a room of hostile adults explaining why he should have the right everyone else has to use the bathroom in peace,” Block said.
Both the U.S. Department of Education and the U.S. Department of Justice have since ruled that, under Title IX of the U.S. Education Amendments of 1972, schools must allow transgender students to use the restrooms and locker rooms that are consistent with their gender identity.
“I am fighting this fight because no kid should have to think so hard about performing a basic and private function of being alive,” Grimm said. “No kid struggling to be accepted, and struggling to accept themselves, should have to simultaneously battle for the right to use the correct bathroom.”
The appeal in the Gloucester case comes on the heels of a landmark ruling by the Education Department in a similar case brought by the ACLU of Illinois. In that case, the Education Department held that a suburban Chicago school had violated federal law by denying a transgender female student access to gender-appropriate locker room facilities.
To date, several federal agencies—including the U.S. Labor Department, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and the Office of Personnel Management—have agreed that transgender people should be able to use the restroom that corresponds with their gender identity.
“I can say I did not set out to make waves; I set out to use the bathroom,” Grimm said as he began tearing up at Wednesday’s press conference. “It is scary. And it’s not easy. But I will do my best to help anyone.”
Audio of court hearing at http://coop.ca4.uscourts.gov/OAarchive/mp3/15-2056-20160127.mp3
Court documents available at https://acluva.org/17406/grimm-v-gloucester-county-public-school-board/