Supreme Court takes up school bathroom rules for transgender students

By Robert Barnes
Washington Post
Updated 10/28/2016 3:28 PM

The Supreme Court on Friday said it will decide whether the Obama administration may require public school systems to let transgender students use bathrooms that align with their gender identity, putting the court again at the center of a divisive social issue.

School districts across the country are split on how to accommodate transgender students in the face of conflicting guidance from courts, the federal government and, in some cases, state legislatures that have passed laws requiring people to use public restrooms that coincide with the sex on their birth certificates.


The justices accepted a petition from Gloucester County, Va. On a 5 to 3 vote in August, they said the school board did not have to comply with a lower court's order that 17-year-old student Gavin Grimm, who was born female but identifies as male, should be allowed to use the boys' bathroom during his senior year of high school.

In the Supreme Court's unusual Aug. 3 order granting the stay, Justice Stephen Breyer said he was joining the conservative justices as a "courtesy" that would preserve the status quo while the court considered whether to accept the case. That means the stay will remain in place until the court decides the case next year.

Grimm, referred to as G.G. in court papers, came out as a transgender boy in his freshman year of high school, and as a result of hormone therapy, had a deep voice and facial hair, his lawyers told the court.

"In every aspect of life outside school, G. is recognized as a boy," wrote Joshua Block, a lawyer at the American Civil Liberties Union. "At school, however, G. is singled out from every other student and forced to use separate restrooms because his school board has concluded that G.'s mere presence in a restroom used by other boys is unacceptable."

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Grimm sued the school board, alleging that its policy -- requiring that students use bathrooms corresponding with their "biological sex" -- is discriminatory and violates his civil rights.

The U.S. Court of Appeals for the 4th Circuit sided with him in April, ruling that his case could move forward. It deferred to the Obama administration's position that Title IX, the federal law banning sex discrimination in public schools, protects the rights of transgender students to use school bathrooms that align with their gender identity.

A month after the 4th Circuit decision, the Education Department issued that guidance to the rest of the nation's public schools.

The move sparked a backlash and a lawsuit by several states that argued the administration had overstepped its authority. A federal judge in north Texas issued a preliminary injunction in August blocking the department's guidance.

The Gloucester board's petition to the court says the department's position "presents an extreme example of judicial deference to an administrative agency's purported interpretation of its own regulation."


It was developed by "a relatively low-level official in the Department of Education" without proper notice and comment, said the petition filed by the board's lawyer, Kyle Duncan.

The petition said the case provides the court an opportunity to reexamine a 1997 precedent, Auer v. Robbins, that affords deference to an agency's interpretation of its regulations. It has been criticized by several conservative justices, but the court earlier this year turned down a chance to revisit it and did the same in accepting the Gloucester case.

Earlier this month, a federal magistrate judge has recommended against a preliminary injunction that would reverse Palatine-Schaumburg High School District 211's decision allowing a transgender student to use a girls locker room and restroom at Fremd High School in Palatine. In Elgin Area School District U-46, officials say they won't reverse a decision to provide locker room and restroom access to transgender students based on their gender preferences.

Transgender students say using bathrooms that correspond with their gender identity is a civil right and critical to protect their well-being. But some parents, school board members and state legislatures have pushed back, calling for laws and policies that require students to use bathrooms aligned with the sex on their birth certificates. They argue that such rules are necessary to safeguard privacy and traditional values.

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