Source:  Hank Berrien

On Monday, the Supreme Court turned down an opportunity to reverse a ruling that permitted students identifying as the opposite sex to use the opposite sex’s bathrooms.

The Court declined to hear the case of Gavin Grimm, a Virginia female student who identifies as a boy who had sued the Gloucester County school board for stating that restrooms were “limited to the corresponding biological genders.”

“The case initially reached the Supreme Court in 2017, but the argument was canceled after President Trump reversed an Obama administration rule that had directed schools to allow students to use restrooms that correspond with their gender identity,” The Washington Post noted.

The Obama Department of Education wrote in May 2016, “Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. … A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

In February 2017, the Trump administration Department of Education withdrew the Obama guidance, writing:

These guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity.  These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

The ACLU had claimed that requiring Grimm to use separate single-stall bathrooms “and stigmatized him as unfit to use the same restroom as his peers,” NBC News reported. After SCOTUS declined to hear the case, Josh Block, a senior staff attorney, chortled, “This is an incredible victory for Gavin and for transgender students around the country.”

Grimm echoed, “Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

“Justices Clarence Thomas and Samuel Alito said the Supreme Court should have taken the case,” NBC News added.

In August 2020, the 4th U.S. Circuit Court of Appeals ruled 2-1 that the Gloucester County School Board had violated Grimm’s constitutional rights; the court wrote that the school board’s position was as though there were “special bathrooms that might as well have said ‘Gavin’ on the sign. … Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender. Unlike the other boys, he had to use either the girls’ restroom or a single-stall option.”

Becket Law noted, “If ‘sex’ were redefined in Title IX, it would be redefined in many other areas where Congress has not had opportunity to consider the consequences. For example, if the Department of Education’s definition of ‘sex’ under Title IX were adopted, the definition of ‘sex’ in the Affordable Health Care Act would also be impacted. As a result, some religious health care providers could be required to perform gender transition surgeries on children against their best medical judgment.”