Virginia Bathroom Rules Constitute Discrimination, Court Rules

(Photo: Maliz Ong, Creative Commons)

(Photo: Maliz Ong, Creative Commons)

A federal appeals court has ruled that a Virginia high school policy that barred a transgender pupil from using the boys’ bathrooms is discriminatory.

This case, which is being watched closely by public schools and transgender advocacy groups nationwide, was reversed by a three-judge panel of the 4th US Circuit Court of Appeals. The federal judge’s decision to decline Gloucester High School student Gavin Grimm’s claim of sex discrimination had been ordered to a lower court at first, report Mark Binker and Matthew Burns for WRAL-TV.

The newest civil rights battleground nationwide has become transgender rights since the Supreme Court ruled last year that couples of the same sex had a right to be married. Now, transgender rights, after receiving more attention when former Olympic athlete Caitlyn Jenner disclosed her true gender identity, has become the LGBT issue du jour.

But House Bill 2 in North Carolina mandates that all cities in the state to require transgender people to use the bathroom that matches the sex written on their birth certificate. Businesses and politicians have boycotted North Carolina, and there is no doubt that the issue will affect Republican Gov. Pat McCrory’s re-election.

“We have to evaluate the impact of this court ruling on existing legislation, on existing policy that we have throughout North Carolina,” McCrory said. “The Federal courts have taken on this issue with pretty aggressive action and it will cause quite a stir in this nation on all sides.”

McCrory did not agree with the ruling, and explained that his lawyers were looking into it. He said that he felt that schools should be able to make their individual decisions concerning bathroom policies. He added that making “special arrangements” for transgender students was also necessary.

Senate President Pro Tem Phil Berger (R-Rockingham) denounced the ruling and said it would create, “radical social re-engineering of our society by forcing middle school-aged girls to share school locker rooms with boys.”

Gavin Grimm, a Virginia high school student, was born female but identifies as male, has used hormone treatment, and has legally changed his name. His school has been supportive and allowed him to use the boys’ bathrooms. But the school reversed that support after the school board instructed the school not to allow that accommodation, according to Pete Williams of NBC News.

On Tuesday, a 4th-Circuit Court of Appeals in Richmond voted 2-1 to reverse a lower court’s ruling. The original decision had the support of the school board.

The five states of the Fourth District include Maryland, North and South Carolina, Virginia, and West Virginia.

States which have initiated policies that allow transgender students to use the restrooms that match their gender identity include California, Colorado, Connecticut, Massachusetts, New York, and Washington.

Maxine Eichner, a law professor at the University of North Carolina whose specialty is sexual orientation and the law, said the ruling was the first of its kind by a federal appeals court. She cited Title IX of the Educational Amendments Act of 1972 in saying that schools that receive federal funding would not be allowed to bar transgender students from restrooms that match their sex identification, reports Jonathan Drew of the Associated Press and WTVD-TV.

Joshua Block, a senior staff attorney at the ACLU Lesbian, Gay, Bisexual, and Transgender Project, said in a statement:

“Today’s Fourth Circuit decision is a vindication for Gavin and a reinforcement of the Department of Education’s policy. With this decision, we hope that schools and legislators will finally get the message that excluding transgender kids from the restrooms is unlawful sex discrimination.”

The ACLU of Virginia brought the case to court for Grimm in 2015 and said that the federal court has never before affirmed that Title IX protects students who are transgender, reports Eyder Peralta of NPR.