by Gail Deady, The Secular Society Women’s Rights Legal Fellow, ACLU of Virginia
On Aug. 3, 2016, the U.S. Supreme Court granted an “emergency” stay to stop Gavin Grimm, a 17-year-old transgender boy from Gloucester, Va., from using the boys’ bathroom at his public high school.
Gavin lives every aspect of his life as a boy. He has a deep voice and facial hair, and his state ID says he is a male. Gavin’s presence in the Gloucester High School’s restrooms – which have long, tall partitions surrounding the urinals and enclosing the toilets – poses no threat to other students’ privacy.
Yet, the Gloucester County School Board in 2014 enacted a policy banning transgender students from using school restrooms that match their gender identity. Gavin is now the only boy at Gloucester High School who is required to use the restroom in the nurse’s office or a unisex single-user restroom instead of the boys’ restrooms.
With help from the ACLU and ACLU of Virginia, Gavin bravely challenged the Board’s policy as constituting sex discrimination under the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972, which prohibits all discrimination in educational activities on the basis of sex.
Gavin’s case has received national attention due to the United States’ Statement of Interest in support of his Title IX claim, and interpreting one of Title IX’s implementing regulations, 34 CFR §106.33, which allows schools to segregate restrooms by sex, to require schools to allow transgender students to use restrooms that match their gender identity. In a landmark decision, the Fourth Circuit reversed the district court’s dismissal of Gavin’s Title IX claim and deferred to the DOE’s interpretation of §106.33 under Auer v. Robbins.
On remand, the district court granted a limited injunction allowing only Gavin to use only the boys’ restrooms at GHS. It did not apply to anyone else, or affect any other school. It simply allowed Gavin to start his senior year of high school without the shame and stigma of being labeled as “other” every time he has to pee.