Trans Student Fighting School Bathroom Policy Prevails at 4th Circuit

Gavin Grimm, who has become a national face for transgender students, attends a 2019 news conference held by The ACLU and the ACLU of Virginia at Slover Library in Norfolk, Va. (Kristen Zeis/The Daily Press via AP, File)

RICHMOND, Va. (CN) — In line with anti-discrimination protections recently upheld by the nation’s highest court, the Fourth Circuit ruled Wednesday against a Virginia school that barred a transgender teen from using the boy’s bathroom. 

Gavin Grimm was a rising sophomore when his family informed Gloucester County High School officials that Grimm identified as male. For a few weeks until word got out, Grimm used the bathroom for male students.

But the 2-1 ruling from the Fourth Circuit today notes that the school backpedaled after its superintendent, principal and board members “began receiving numerous complaints via email,” many coming from “adults in neighboring communities and even other states.”

Ultimately the school installed a policy requiring students to use facilities that corresponded with their biological sex, while also creating a single-sex stall for transgender students who sought different accommodation.

In addition to being far-flung from his classes, however, Grimm found that using the special stall carried its own stigma. He tried to avoid using the bathroom altogether, but this led to urinary tract infections, and his existing suicidal ideations worsened. 

Writing for the majority Wednesday, U.S. Circuit Judge Henry Floyd highlighted that identifying as transgender is not by itself a “psychiatric condition,” nor does it imply a lack of someone’s “judgement, stability, reliability or general social or vocational capabilities.” 

But the judge also noted that struggles with mental health tend to arise within the community when societal pressures and often violent prejudice take their toll.

Judge Floyd cited the American Medical Association and National Center for Transgender Equality, respectively, as having found that transgender people are three times more likely than the general U.S. population to be diagnosed with a mental health disorder and nine times more likely to attempt suicide.

Gloucester’s school board insisted that it applied its policy equally so that “all students are treated the same, regardless of sex.” The board even pointed to language in the very policy sparked by Grimm, and argued that “any student” at its high school could use the private single-stall restroom.

“But that is like saying that racially segregated bathrooms treated everyone equally, because everyone was prohibited from using the bathroom of a different race,” wrote Floyd, whom Obama nominated to the bench in 2011. “No one would suppose that also providing a “race neutral” bathroom option would have solved the deeply stigmatizing and discriminatory nature of racial segregation; so too here.”

The Fourth Circuit also summarily shot down an argument from the board suggesting that, even if its policy discriminates on the basis of sex, it cannot violate any equal protection clause because Grimm was not “similarly situated to cisgender boys.” 

People who identify with the sex they were assigned at birth are considered cisgender.

“Instead, it asks us to compare Grimm’s treatment under the policy to the treatment of students it would consider to be ‘biological girls,’ because Grimm’s ‘choice of gender identity did not cause biological changes in his body and Grimm remain[ed] biologically female,’” Floyd wrote, referring to the school board.

But in that very position, Floyd found, the board’s own bias is made clear.

“It believes Grimm’s gender identity is a choice and it privileges sex-assigned-at-birth over Grimm’s medically confirmed, persistent and consistent gender identity,” the ruling states.

Grimm’s legal challenge, launched with the American Civil Liberties Union and its Virginia chapter, reached the Supreme Court in 2017. It was punted back to the Fourth Circuit, however, once President Donald Trump repealed the Department of Education’s Title IX protections for transgender students.

Paving the way for Grimm’s victory last year, the Supreme Court shot down challengers of a trans-friendly bathroom policy for students in Boyertown, Pennsylvania.

“All transgender students should have what I was denied: the opportunity to be seen for who we are by our schools and our government,” Grimm said in a statement Wednesday. “Today’s decision is an incredible affirmation for not just me, but for trans youth around the country.” 

Eden Heilman, legal director for the ACLU of Virginia celebrated the court’s ruling as well, saying the decision helps ensure trans students are allowed to receive an education with dignity and equal protection under the law. 

While fellow Obama-appointed U.S. Circuit Judge James Wynn concurred with Floyd, U.S. Circuit Judge Paul Niemeyer dissented, finding Gloucester’s policy sound given that it already provided “separate facilities for different sexes … including toilet, locker room and shower facilities.”

“Gloucester High School followed these provisions precisely going yet further by providing unisex restrooms for those not wishing to use the restrooms designated on the basis of sex,” added Niemeyer, who was nominated by President George H.W. Bush. 

“This is a big victory for equality in Virginia. Our lights must be on and our doors must be open—no matter who you are, how you identify, or who you love,” said Virginia Governor Ralph Northam in a statement.

The school board did not immediately return request for comment.

Grimm’s victory is another one in the column for the LGBT community. In June, the Supreme Court ruled that lesbian, gay, bisexual and transgender employees are protected from discrimination in the workplace.

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