For the first time, the Supreme Court will weigh in on the question of whether transgender students should be allowed to use bathrooms matching their gender identity, rather than the sex listed on their birth certificates.
On Friday, the justices announced they would hear the case of 17-year-old Gavin Grimm, a trans boy in Virginia who sued his school board last year after it blocked him from using the boys’ bathroom at his school. In 2014, doctors diagnosed Grimm, who was born female, with gender dysphoria and recommended that he live and be treated as a boy. Grimm argues that the school board’s bathroom policy singles him out for being different and violates Title IX, a civil rights law that prohibits discrimination on the basis of sex in schools that receive federal funding.
The case comes as the national debate about transgender bathroom access has reached a fever pitch. The Obama administration, which has thrown its support behind Grimm, told public schools in May that they could lose federal funding if they blocked trans kids from the bathrooms of their choice. Twenty-three states have since sued the Department of Education over this directive. They argue that Title IX applies only to sex discrimination, not gender identity discrimination, and that allowing trans kids to use the bathrooms of their choice could violate the privacy rights of other children.
Grimm, who is represented by the American Civil Liberties Union, initially lost his case in district court. But in April, the 4th Circuit Court of Appeals ruled in his favor, kicking the case back to the lower court and urging it to respect the Obama administration’s trans-friendly guidance on bathroom access. The district court then granted an injunction allowing Grimm to use the boys’ bathroom while it considered his case again.
In July, the school board filed an emergency appeal with the Supreme Court, asking the justices to temporarily block Grimm from the boys’ room while they decided whether to review the appeals court decision; otherwise, the school board argued, parents might pull their kids out of school. In August, the Supreme Court agreed and temporarily blocked Grimm from the boys’ room. That decision remains in place until the case is resolved.
If the justices are divided and the case results in a 4-4 split, the appeals court’s ruling in Grimm’s favor would stand.
For Grimm, the decision can’t come soon enough. Right now, he has two options: use a single-stall bathroom or visit the bathroom in the nurse’s office. “I feel the humiliation every time I need to use the restroom and every minute I try to ‘hold it’ in the hopes of avoiding the long walk to the nurse’s office,” he wrote recently. A few weeks ago, he had to go to the bathroom at an evening school football game. “Suddenly a night out with friends was marred by the realization that someone was going to have to take me to a gas station if I needed to use the restroom,” he wrote.
He continued, “If you told me two years ago that the Supreme Court was going to have to approve whether I could use the school restroom, I would have thought you were joking…If the Supreme Court does take up my case, I hope the justices can see me and the rest of the transgender community for who we are—just people—and rule accordingly.”