Bathroom Rights for Transgender People

By Leea Pronovost

The reason for this blog at this particular time is kind of two-fold, first and foremost, is because of the Gavin Grimm case decision from the US Court of Appeals Fourth Circuit which had ruled for the second time in this case, in favor of the plaintiff, Gavin Grimm.

We will get into the fact of a second ruling on this case in a bit.


This also means (more than likely) it will be heading back to the Supreme Court for a hearing, and most likely, will not be sending it back to the lower court. The second reason is, to implore onto the queer community (that would read this blog) just how important this coming election is for us, as transgender people, and the entirety of the LGBTQIA+ queer community!

If you’re transgender and have been following the case of one brave young man, Gavin Grimm, then you know for the most part what I’m going to write about. But to give you all a little background in this case, (you’re not one who has followed the case) here we go.

Gavin Grimm was a student in Gloucester High School. In 2014 at the beginning of his sophomore year, his mother notified the administrators that Gavin was suffering from sever gender dysphoria, so she told them he would now be going by the name of Gavin and that his gender was now to be classified as male. The school adopted a policy that allowed Gavin to use the male bathroom at that time. Everything went smoothly for two months without any incidents. The school then received complaints from some parents and resident within the Gloucester County. So, the school board adopted a new policy, with regards to Gavin on December 9, 2014, the school board adopted a 6-1 vote against Gavin, despite the ACLU’s (American Civil Liberties Union) warnings.


Now, back then Obama was the President of the United States of America, and back in 2010 the OCR wrote a “Dear Colleague”, clarifying that the Title IX protects LGBT students from harassment on the basis of sex stereotypes. Then, again on May 13th, 2016, the DOJ and the DOE issued a joint letter clarified in the form of a “Dear Colleague letter” and a compilation of actual policies and practices which formalized the administration’s previous letter from 2014. In practice, this generally meant the following:

  • provide an environment free of sex-based harassment,

  • honor transgender students' preferred names and pronouns,

  • permit all students to participate in sex-segregated activities and use sex-segregated facilities (including bathrooms, locker rooms, and overnight accommodations) in accordance with their gender identity, and

  • protect transgender students' privacy by avoiding non-consensual disclosure of their gender status.

There was one exception to this, such as “sports” due to physical fairness, where accommodating transgender students would impair that fairness or physical safety. If you look at my blog about sports (https://www.genderadvocacyproject.org/post/being-transgender-and-in-sports) this all took place because of the Texas school systems didn’t want to allow Mack Beggs to wrestle in the men’s division. A few other cases came up about the policy of transgender students using the corresponding bathroom facilities. Texas was one of those states that filed law suits against the Obama administration, over the Title IX interpretations.


The ACLU then filed a lawsuit on behalf of Gavin Grimm, along with a preliminary injunction, so that Gavin could use the same restroom as the other boys when the 2015-2016 classes resumed. The district court denied the injunction and dismissed the claim under Title IX, which was then submitted to the US Court of Appeals for the Fourth Circuit, and then overturned the lower court’s decision. Gloucester County School Board petitioned for a Writ of Certiorari. This means that they wanted the Fourth Circuit Court to review the case, with the entirety of the lower court’s decision, and all of its records on that case, in order to make a more fully informed decision. The Court still decided to overturn the case from the lower court’s ruling.


The Supreme Court initially announced that it would hear the case and review the Fourth Circuit’s decision. They set arguments to be heard in early 2017. However, just few weeks prior to the time for the court to hear the arguments, the Trump Administration rescinded the Obama Administration’s interpretation of Title IX. (Which the Fourth Circuit’s over turning of the District Court’s decision was based partly on the Title IX guidelines, as well as the Constitutional right of non-discriminatory practices). So” they”, being the Supreme Court, decided seeing the ruling of the Fourth Circuit’s decision was based, in part, on the Title IX interpretation and guidelines. It had been changed by the time it got to the Supreme Court and they needed to send it back for further evaluation by the Fourth Circuit, now that they should not consider anything about the Title IX.


In the meantime, Gavin had Graduated High School in June 2017 without using the boy’s room like any other boy within the school. He then withdrew his preliminary injunction and filed an amended complaint for nominal damages. Along with, an injunction that would prevent the Board from excluding him from using the restroom when he is on campus, for any type of alumni activities.


Fast forward to August 26th, 2020, with a little more than a 5-year battle behind him against the Gloucester County School Board. The Fourth Circuit Court of Appeals ruled that the restroom policies segregating transgender students from their peers and denying transgender students’ accurate transcripts, are essentially unconstitutional!! Also, they violate the Title IX of the federal law prohibiting sex discrimination in education. The actual decision and entire transcript, if you are interested in reading it, can be found here: https://www.aclu.org/legal-document/grimm-v-gloucester-county-school-board-opinion.


And after all of this, it will now probably have to go back to the US Supreme Court!


Given how long this process took so far, and the fact that it probably is not done yet, the Gloucester County School Board still has time to file an appeal of the Fourth Circuit’s ruling. This means, that Gavin had to go through school, be singled out as being transgender and having to put up with all the harassment, not only by the other students, but probably some of the teachers and parents of the other students. Adults from around the county that refuse to educate themselves on the issues surrounding the transgender community and understanding why someone comes out as transgender, along with the science that backs that, “this is not just a choice”, but also a preferred method of treatment for people who suffer from gender dysphoria. In some cases, this type of discrimination would cause some youth to commit suicide! I have seen it too many times and know way too many transgender youths who have done so and the only thing I can say, “this type of discrimination has to be stopped in order to save our community”!

This finally brings me back to the secondary reason for writing this blog, which is about the next four years of the coming presidency. “This person” will be choosing at least one, and maybe two more Justices for the US Supreme Court. The two that would be retiring are on the liberal side of the court. Now, if Donald Trump is the one to decide this, one or maybe two justices, you know they will be conservative. The court is already leaning more to the conservative side now. It would be a total conservative court. This would not be a good thing for this case or other cases that maybe coming up through the courts. I could see them overturning Rowe vs. Wade. I could also see them overturning the work force protections that we’ve just won! There are also many other justices that would be appointed to the federal courts throughout the entire country. My point is, in this election, we are not only voting for the President, but also, those who will sit as justices on our federal court system! Our lives as transgender people depend upon you voting, and allowing us to have a more liberal type of justice system. The livelihood of all LGBTQIA+ people are at stake on this coming November.


I must implore you to get out and register to vote, as well as voting. The last election there were over 90 million eligible voters who did not vote and just a little more than 60 million that voted for both Clinton and Trump, with Clinton only beating him in the popular vote by a couple million votes. If even half of those voters, who decided not to vote voted it could have made the difference in the election and the country would look very different today.


If you know someone who is not going to vote then please convince them to vote. Please remember our lives depend upon this. Register to vote @ https://www.whenweallvote.org/

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