Courts Leave Transgender Rules in Limbo as School Begins

CNN/ Newswire | 8/29/2016, 7:44 a.m.
Students returning to school this fall are likely to face some confusion as school boards struggle with the issue of ...

By Ariane de Vogue

CNN Supreme Court Reporter

WASHINGTON (CNN) -- Students returning to school this fall are likely to face some confusion as school boards struggle with the issue of access to bathrooms for transgender individuals.

A year-and-a-half after the Supreme Court cleared the way for same-sex marriage nationwide, there is a new frontier for LGBT litigation and it concerns transgender rights.

The legal battle is playing out in some school districts, led by a transgender male student in Virginia who seeks to use the bathroom that corresponds with his gender identity, as well as in courts across the country, most notably in North Carolina where the Justice Department has filed a federal civil rights lawsuit against the state's 2013 bathroom law.

Last April, a federal appeals court ruled in favor of Virginia resident Gavin Grimm, who fought the school board's new policy at Gloucester High School that denied him access to the boys' bathroom but allowed him the use of recently constructed single-stall unisex restrooms.

"Forcing a transgender student to use separate restrooms from everyone else interferes with that student's equal access to the resources and educational opportunities of school," ACLU attorney Joshua A. Block, Grimm's lawyer, had argued in court papers.

But lawyers for the school board won an emergency bid from the Supreme Court to temporarily freeze the opinion pending appeal. On Monday, they will ask the justices to take up the case this term.

For now, Grimm will return to school this fall unable to use the boys' bathroom.

Grimm's case had a ripple effect on other schools.

Last June, for example, Charlotte-Mecklenburg School District in North Carolina had put forward regulations directing that transgender students could use the bathroom of their gender identity.

But after the Supreme Court issued a temporary stay in Grimm's case, the school district changed course.

Superintendent Ann Clark released a statement saying that while the school district "remains committed to nurturing a safe and welcoming learning environment for every student" the district was putting a "temporary hold" on the regulation.

The Obama administration has thrown its weight behind transgender students.

"We see you," Attorney General Loretta Lynch told transgender individuals when she announced the lawsuit in May. "No matter how isolated or scared you may feel," she said, "the Department of Justice and the entire Obama administration wants you to know that we see you."

Lynch's words came as welcome relief to those who believe that LGBT opponents, having lost at the Supreme Court on same-sex marriage, are now targeting the transgender community.

In May, the departments of Justice and Education told public school districts and colleges that receive federal funding that it interprets "sex discrimination" under Title IX, a federal law that bans sex discrimination in schools, to include claims based on gender identity.

"A school may not require transgender students to use facilities inconsistent with their gender identity," the guidance reads.

The administration's guidance outraged Texas Attorney General Ken Paxton who led a charge on behalf of several states and last week won a nationwide injunction from a district court judge in Texas barring federal agencies from taking action against the schools that disagreed with the guidance.