Supreme Court could decide whether to hear transgender case Friday

Pictures: Gavin Grimm

The U.S. Supreme Court could decide on Friday whether it will review the lawsuit between the Gloucester County School Board and 17-year-old transgender student Gavin Grimm.

The school division filed a petition on Aug. 29 asking the high court to determine if it is violating federal law by refusing to allow Grimm access to the boys’ restrooms. It will be one of the petitions discussed in this week’s Friday conference, where the justices decide which cases to accept and which to reject.

Grimm was born female but identifies as a male. The lawsuit, filed on his behalf by the American Civil Liberties Union, is the first transgender restroom rights case to reach the U.S. Supreme Court.

At the center of the case stands the division’s restroom use policy passed in December 2014 that requires students to use the restroom associated with their physical sex or single-stall private unisex restrooms.

The ACLU argues that the school division’s policy violates Title IX and the equal protection clause of the 14th Amendment. Title IX, a federal law that prohibits sex discrimination in schools, requires school divisions to provide equal restrooms for male and female students separated on the basis of sex.

The School Board argues that Title IX does not state that gender identification is included in the definition of sex.

“Everyone agrees that the Title IX regulation squarely addresses — and expressly allows — sex-separated restrooms, exactly like the ones provided by the board’s policy,” the School Board argues.

In June, a federal district court ordered Gloucester schools to allow Grimm to use the boys’ restrooms. But in August the Supreme Court granted the School Board’s request to block that injunction pending its appeal to the high court.

If the justices reject the case, the injunction will go back into place, meaning Grimm will be allowed to use the boys’ restrooms while the case proceeds in the federal district court.

“We remain hopeful the Supreme Court will decline to hear the case and that Gavin will be allowed to use the school’s restroom that corresponds with his gender identity,” said Gail Deady, the Secular Society Women’s Rights Legal Fellow at the ACLU of Virginia. “That will allow him to finish his senior year without being stigmatized every time he has to use the restroom.”

Last fall, federal Judge Robert Doumar with U.S. Eastern District Court of Virginia refused to issue the same injunction. Doumar dismissed the claim in the suit that the School Board’s decision violated Title IX, but did not rule on the 14th Amendment claim. The ACLU appealed Doumar’s ruling.

In April, a three-judge with the U.S. Circuit Court of Appeals voted 2-1 in Grimm’s favor, sending the case back to Doumar and telling him to reconsider.

David Corrigan, an attorney representing the school division, declined to comment Thursday.

In its petition, the Gloucester School Board states that a ruling in the division’s favor would resolve “once and for all the current nationwide controversy” generated by similar cases that have followed Grimm’s lawsuit.

A jury trial set for January in the U.S. Eastern District Court of Virginia has been postponed. The justices could decide to reject the case; to accept it and hear it during their 2016-17 session; or to pass on it and make a decision at a later date.

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