Six States File Amicus Brief in Transgender Teen’s Appeal to Use Boys’ Bathroom

Recently, the South Carolina State Attorney General filed an amicus brief on behalf of six states in support of a school board’s restroom policy that prohibits a transgender teen from using the boys’ restroom.

By way of background, Gavin Grimm is a 16-year old transgender student who was born female but identifies as a male. Beginning in October 2014, with the consent of school officials, Grimm began using the boys’ restroom at Gloucester High School, located in Virginia. Grimm was permitted to use the boys’ restroom for seven weeks without issue. Subsequently, some families of students at Grimm’s school complained. In December 2014, the Gloucester County School Board adopted a restroom policy that limits limit the use of girls’ and boys’ restrooms to students of “the corresponding biological genders…students with gender identity issues shall be provided an alternative appropriate private facility.” The passage of this policy left Grimm with two options: Grimm could either use the restroom associated with Grimm’s biological sex (the girls’ restroom) or Grimm could use the single-stall private restroom located in the nurse’s office.

Grimm filed a lawsuit against Gloucester County Public Schools in June of 2015 alleging that the restroom policy violated Title IX and the Equal Protection Clause of the 14^th Amendment.

Robert G. Doumar, a federal judge in Virginia, held that the school board’s decision to prohibit the transgender student from using the male restroom does not constitute unlawful discrimination under Title IX because Title IX permits schools to maintain separate restrooms for different sexes.

Following the decision, Grimm filed an appeal in the U.S. Court of Appeals for the Fourth Circuit. The U.S. Department of Education and the Department of Justice have weighed in on this issue and filed an amicus brief in support of the transgender teenager. The federal agencies argue that the restroom policy amounts to an unlawful bias under Title IX because the policy denies transgender students a benefit of using “restrooms that are consistent with his or her gender identity” that every other student enjoys.

Most recently, South Carolina State Attorney General, Alan Wilson, filed an amicus brief with the opposing viewpoint on behalf of South Carolina, Arizona, Mississippi, West Virginia, Maine, and North Carolina. In its brief, the six state officials say they have an "interest in maintaining control of their schools and ensuring that they are not required to follow a United States Department of Education interpretation of its regulation that is contrary to Title IX." Attorney General Wilson contends that Congress defines “sex” in Title IX as biological sex, not gender identity. Attorney General Wilson argued that, because Grimm has access to girls’ restrooms and single-stall unisex restrooms that are comparable to boys’ restrooms, Grimm does not have a valid claim under Title IX. Attorney General Wilson added that, although Grimm’s driver’s license lists him as male, Grimm should be considered as biologically female because he has “female sexual and reproductive organs, and lacks the male sexual reproductive organs.” "Sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity," it states. "This court should hesitate long before becoming the first court ever, anywhere in the United States, to force schools to admit adolescent biological females into boys' bathrooms and locker rooms, and adolescent biological males into girls' bathrooms and locker rooms. If such a social revolution is to be wrought, it must come from the democratically elected legislature, not the courts or the executive," according to the brief.

The appeals court is scheduled to hear oral arguments this month. Institutions are advised to pay close attention to this case, as it has the potential to have significant practical as well as legal implications.

If you have any questions or concerns regarding employment or education-related issues, please contact Hayley B. Dryer at hdryer@cullenanddykman.com or at 516-357-3745.

Thank you to Garam Choe, a law clerk at Cullen and Dykman, for his assistance with this blog post.