A “GRIMM” OUTLOOK FOR TRANSGENDER BATHROOMS?

I am finally back to posting in my own blog, after several months of concentrating on articles and interviews for other outlets, both publications and radio programs. There were a handful of topics I was repeatedly asked to discuss, and some of them overlapped with each other. For example, I was often asked about the issue of what bathroom a transgender person should use, an issue that has been a hot topic since the North Carolina law that passed about a year ago. I was also often asked how the Trump administration would affect transgender rights in the Unites States.

When asked the second question, I would start out by saying that in spite of his general aura of intolerance toward all sorts of minorities, Donald Trump had not shown particular intolerance toward the transgender community. In fact, when the furor about bathroom use started, his first reaction was that trans people should be able to use whatever bathroom they preferred. This stood in marked contrast to Ted Cruz’s proclamation that they should only go to the bathroom at home! As conservative uneasiness with Trump’s position became apparent, he modified his stance by saying that the matter should be decided by each state individually.

Whenever I addressed the bathroom issue, I pointed out that it was one of the few matters of LGBT concern that the President could actually affect directly. To understand why, a bit of history is necessary. The question of bathroom use started to come up several years ago when a succession of transgender students demanded the right to use the bathrooms that corresponded with their gender identify, meaning the gender they personally identified as rather than the sex they were assigned at birth. Several of these cases made it to court, where they had differing outcomes. National attention came when North Carolina passed HB2 early last year, providing that people using public bathrooms (including but not limited to bathrooms in schools) must use the one that matches the sex on their birth certificates. The law prompted a national uproar, with many businesses and athletic organizations declaring a boycott of North Carolina. The Obama administration reacted by initiating legal proceedings against the state.

Later last year, focus of attention shifted back to trans students. A Virginia high school student named Gavin Grimm, who is a transgender boy, sued the school board for the right to use the boys’ room. When a federal district court dismissed the case, he appealed to the Fourth Circuit Court of Appeals, where he won. What made this case especially interesting was that it was based on Title IX, the federal law that banned sex discrimination in public schools. That law had never before been used to prevent sex-segregated bathrooms, but guidelines issued by the Obama administration said that transgender students must be allowed to use the one bathroom consistent with their gender identity. The appeals court accepted that new interpretation of Title IX, but the Gloucester County School Board appealed to the U.S. Supreme Court. When the Supreme Court agreed to hear the case, the North Carolina case and the application of the federal guidelines to other school districts basically faded into the background while everyone awaited its decision. This is where the election of Donald Trump became relevant.

As I said to everyone who asked, there were two ways that he could directly affect the case of Gloucester County School Board v G.G., as it is known. First, his appointment of a new Supreme Court justice could affect the court’s decision. Second, his administration could simply revoke the Obama Administration guidelines that Gavin Grimm’s case (and the Circuit Court’s ruling in his favor) was based on. So it was no surprise to me when the new administration did exactly that. Nor was it a surprise when, shortly thereafter, The Supreme Court announced that it would not hear the case. Hearing it now could be pointless, since the basis for it has disappeared.

Instead, the Supreme Court sent it back to the Appeals Court, which may now reverse its earlier decision that hinged on the Obama administration’s interpretation. Still, there may be two other possible outcomes. Conceivably, the Appeals Court could accept an interpretation of Title IX offered by the ACLU itself (which is representing Gavin Grimm) without reference to the Obama Administration’s interpretation. Alternatively, the ACLU might be able to shift gears and replace its Title IX argument with a different approach altogether. The relevance of Title IX to use of bathrooms by transgender students was always questionable, and other arguments can be made to oppose discrimination against transgender students in public schools. It is very likely that this is what will happen, whether in the Gavin Grimm case or others. This issue is not about to go away. It is simply too important to both the transgender community and many other people who see transgender rights as an important new civil rights issue. I will continue to track its course and keep you abreast of its twists and turns.


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