Monday, January 30, 2023

Transgender bathroom access on hold legally


In a 5-3 vote, the Supreme Court of the United States issued a stay yesterday and, for the moment, put on hold a lower court’s order that requires a Virginia high school to give a transgender boy unrestricted access to the boys’ restroom.

Some gender lines blur in our schools, but the Supreme Court may step in.

With the stay order, the high court leaves in place a previous school board policy that required Gavin Grimm, 17, who was born a girl but now identifies as a boy, to be given access to a restroom based strictly on his biological sex, not on his gender identity, even though they differ.

The Supreme Court may hear the case next term, since it only takes four justices to allow a case to go forward. A stay requires five justices, and Justice Stephen Breyer indicated that he had only agreed to vote for the stay because the court is in recess and a stay would preserve the “status quo.” His vote in the case would be uncertain.

But any ruling in the case would end what has quickly escalated into a nationwide dispute over transgender students using bathrooms and locker rooms based on their gender identity. Less than three years ago, schools based bathroom access strictly on a student’s biological sex.

The US Court of Appeals for the Fourth Circuit granted Grimm access to the boys’ restroom at his high school in Gloucestor County, Virginia, under Title IX and pursuant to guidance issued in this matter from the Obama administration. The US Departments of Education and Justice issued joint guidance, telling schools that receive federal funds that they should allow students to use restrooms and locker rooms that are consistent with their gender identity.

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

But several groups have risen to oppose the guidance, and about half the states have sued the Obama administration over it. These states say, although the guidance is based on existing civil rights law, the protections in Title IX don’t apply to “gender identity” but to “sex.” The strict wording of the law, on which the Supreme Court usually relies, prohibits discrimination based on “sex” without mentioning the technical term “gender identity.”

While Title IX may not apply strictly to this case, it is clear, given what has been shown to be imporper treatment of transgender students, that laws need to be put in place to protect their rights as if they were under Title IX’s protections. Some groups are protected by civil rights laws based on qualities people are born with (color, ethnicity); others are based on qualities they acquire during the course of growing up (religion). Let’s add gender identity to the list.

That falls upon the legislative branch of government, though, to make new laws. The executive branch (the Departments of Justice and Education) are not charged with “interpreting” the law, as their guidance, quoted above, clearly asserts; that role falls on the judicial branch, and I welcome this review. I also call on legislatures across the country or on Congress to end the ambiguity in the law.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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