Virginia school's emergency SCOTUS appeal protests restroom rule

A school board in Virginia has asked the Supreme Court to allow it to block a transgender male from using the boys bathroom as the court decides whether to review the case. 

First Look

A Virginia school board has asked the US Supreme Court to prevent a transgender high school student from using the bathroom of his choice when classes resumes in September, hoping the high court will decide to hear the school's case after an appeals court ruling supported his choice to use male restrooms.

The Gloucester County School Board has filed an emergency appeal seeking to block transgender student Gavin Grimm, who was born female but identifies as male, from using the bathroom of his choice. That wish goes agains a May 2016 directive from the Department of Education, telling schools to allow students to use the bathrooms of their choice or risk losing federal funding.  

The accelerating national discussion of transgender rights has proven particularly contentious in American schools, as The Christian Science Monitor reported last month. Administrators are tasked with juggling issues of privacy, identity, and equality on top of clashing opinions from parents, students, states, and the federal government. 

"Depriving parents of any say over whether their children should be exposed to members of the opposite biological sex, possibly in a state of full or complete undress, in intimate settings deprives parents of their right to direct the education and upbringing of their children," attorneys for the school board wrote in the appeal. 

The American Civil Liberties Union (ACLU), however, which is representing Grimm, said that the school board has demonstrated "little regard for the impact their misguided actions are having on a real teenager's life," as Claire Guthrie Gastanaga, the executive director of the ACLU of Virginia, said in a statement. "We will continue to stand with Gavin and other young people suffering such cruelties and indignities."

Grimm sued the school board after they instituted a policy requiring students to either use the restroom of their biological gender or a private, single-stall restroom. Grimm argued it was in violation of federal education discrimination law, and the 4th Circuit Court of Appeals sided with him in April.

Before the board instituted the single-stall policy, Grimm had briefly been permitted to use the boys restroom at school. 

"I didn't have any kind of altercations. I didn't have any funny looks," he told NPR. He objected to being told to use a unisex, single-stall bathroom because "I'm not unisex. I'm a boy. And there's no need for that kind of ostracization," he said. 

The school board plans on filing its petition for Supreme Court review by late August, so presumably the court will not have decided yet whether to take the case before the start of school in September. 

The Obama administration's directive interpreted transgender individuals to be protected under the Civil Rights Act of 1964, but 13 states are challenging it in court as an "overreach" of federal power. 

This has led to schools districts in some states having to chose between following the state law or the federal directive, a challenging choice for administrators, particularly when funding is at stake. 

"If you're a district that’s sailing along, everything is fine, and now all of a sudden you have two mandates – one from mom and one from dad – what do you do?" Jeff Nash, a spokesman for the Chapel Hill-Carrboro School District in North Carolina, told the Monitor. "And it's not like they’re talking about two different shades of blue. One wants blue, the other red."

Whether the Supreme Court will take Grimm's case is up for debate. Many Americans are struggling to understand transgenderism, with only a small minority saying they know someone transgender, and court observers say the justices often try to avoid being seen as far out of step from the citizenry's values, as the Monitor's Patrik Jonsson reported last month:

Yet, in recent years, state and federal courts have consistently ruled in favor of those seeking to define their gender identity. And polls also suggest that empathy has started to play a role in how society and the judiciary are dealing with transgenderism. And polls also suggest that empathy has started to play a role in how society and the judiciary are dealing with transgenderism.

"Ultimately, the issue is won or lost on the public level, not on the legal level, where we have to become familiar with what it means to be transgender," says Katherine Franke, the director of the Center for Gender & Sexuality Law at Columbia Law School in New York. "There's a tremendous anxiety around gender identity and what it means to be a man or a woman – which, in turn, are pretty fundamental questions."

This report includes material from the Associated Press.