The Volokh Conspiracy
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This post is the final in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."
Perhaps the most polarizing education case that the Supreme Court has agreed to address in recent years involved whether schools can legally prohibit transgender students from accessing restrooms consistent with their gender identities. The lawsuit stemmed from events that began in 2014, when a rising tenth-grade student named Gavin Grimm informed school officials in Gloucester County, Virginia, that he wished to be referred to with masculine pronouns and addressed by his newly adopted legal name. Ever since Grimm first appreciated the distinction between boys and girls, he felt that he was a transgender male—even if his vocabulary then lacked that terminology. At age six, Grimm began rejecting traditional feminine attire. Years later, when Grimm came out as trans to his parents, they were initially stunned, as neither of them had ever previously encountered the transgender concept. But they educated themselves about the subject and soon resolved to assist with their child's transition. Grimm's parents, in addition to facilitating his name change, would help him secure hormonal treatments to lower his voice and to provide him with a more traditionally masculine appearance.
Despite this affirming parental response, Grimm feared how school officials would react to his transition. His trepidation initially proved misplaced, as Gloucester High School accepted Grimm's request to recognize his male gender identity and pledged its support. As Grimm recalled, "[The school] assured me that teachers and administrators would call me Gavin, and use male pronouns when referring to me, and if anyone gave me any kind of trouble, it would be resolved right away." Roughly one month into the school year, Grimm sought and received permission from Gloucester's principal to begin using the boys' restroom, rather than a single-occupancy restroom located in the nurse's office. Going to a separate part of the school—isolated from fellow students—to relieve himself caused Grimm to feel embarrassment and extreme discomfort. After receiving school authorization, Grimm used the boys' restroom without incident for seven weeks.
But when adults in Gloucester County learned that Grimm was using the male bathroom, the school board held two meetings, where many community members attacked the arrangement. At the first meeting, several speakers emphatically used feminine terms, including "girl" and "young lady," to refer to Grimm. Yet that first meeting was decorous compared with the second meeting, when one speaker called Grimm "a freak" and likened him to a person who, believing he is actually a canine, attempts to urinate on fire hydrants. Grimm, who attended both meetings, pleaded with the school board, "All I want to do is to be a normal child and use the restroom in peace." By a 6–1 vote, the board rejected Grimm's request, and enacted a policy requiring "students with gender identity issues" to use separate, private facilities from their classmates. In response to this change, Grimm sought to avoid using the restroom at school altogether and consequently developed several urinary tract infections. He also decided to mount a lawsuit contesting the school board's policy.
The U.S. Court of Appeals for the Fourth Circuit vindicated Grimm's claim in April 2016. In so doing, it yielded to the Obama administration's interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination "on the basis of sex" for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations, meaning that it would be impermissible to exclude Grimm from the boys' restroom. The Fourth Circuit found that the regulatory terms contained sufficient ambiguity that—in accordance with binding administrative law precedent—the executive branch's interpretation deserved deference. The Supreme Court agreed to review the Fourth Circuit's opinion, but shortly before the Court was scheduled to hear oral argument, the Trump administration rescinded the Obama administration's guidance. The Supreme Court subsequently remanded the case to the lower courts for an assessment of whether Grimm should prevail even amid the transformed legal landscape.
While Gavin Grimm graduated from high school before the Supreme Court ever definitively addressed his claim, it seems unlikely that the Court will be able to avoid resolving his central legal question for long. One estimate suggests that there are somewhere between 165,000 and 555,000 transgender students attending various elementary and secondary schools in the United States, and many of them do so in jurisdictions where educational authorities treat them adversely. If the issue does soon return to the Court, moreover, it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.
Days after the Trump administration rescinded the previous administration's guidance, a district court judge in western Pennsylvania relied upon the Equal Protection Clause to reject a school board's efforts to prohibit three transgender students from accessing restrooms congruent with their gender identities. The Supreme Court's extensive jurisprudence interpreting the Equal Protection Clause to reject sex classifications, Judge Mark Hornak reasoned, provided protection to transgender students in this context. "[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes," Judge Hornak wrote. "The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities."
As in Gavin Grimm's case, the Pennsylvania high school in question had initially permitted transgender students to use their requested bathrooms before the school board enacted a measure eliminating that access. Prior to the district's new policy, the school experienced neither bathroom disturbances nor intrusions upon student privacy. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Hornak, satisfy transgender students' rights under the Fourteenth Amendment.
While it seems predictable that many right-leaning critics would disparage opinions vindicating transgender students' claims, it may be surprising to learn that some commentators can be understood to denigrate such opinions from the left. To these commentators, the notion that a human being can somehow use the "wrong" bathroom is itself profoundly wrong. Indeed, a few prominent legal scholars have contended that it has grown increasingly difficult to justify sex-segregated bathrooms at all. Grimm's attorney expressly disavowed such a goal, stating that his client "is not trying to dismantle sex-segregated restrooms. He's just trying to use them."
Whatever Grimm's precise objectives, though, surely some trans people would regard abolishing sex-segregated bathrooms as an important victory, even if they also acknowledged it is one that seems unlikely to materialize in the current climate. The trans community, like all communities, holds varied ideals and aspirations. As Jennifer Finney Boylan—author of a best-selling autobiography titled She's Not There: A Life in Two Genders—has memorably expressed this point, "If you've met one trans person, you've met . . . one trans person." In one form or another, then, it seems possible the restroom will remain a contested social space in schools—and the larger society that contains them—for many years to come.