Court backs choose-your-own-restroom policy

In a decision that could have far-reaching consequences for the debate over gender identity and public restrooms, a federal appeals court ruled today that a Virginia school district discriminated against a student by requiring the use of a girls-only or private restroom.

A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in favor of Gavin Grimm, a high-school student who is biologically female but identifies as a male. Gavin, the student’s legal name, has started hormone therapy but has not undergone sex reassignment surgery.

Gavin sued the Gloucester County School Board over its policy requiring students to use the restrooms that correspond to their biological sex. The board set the policy in 2014 after Gavin’s use of the boys’ restroom became public knowledge and parents expressed their concerns about students’ privacy. A lower court ruled the school’s provision of private restrooms for transgender students was a reasonable accommodation of their needs, but the appellate court disagreed.

“As a result of the board’s restroom policy, [the student] experiences daily psychological harm that puts him at risk for long-term psychological harm, and his avoidance of the restroom as a result of the board’s policy puts him at risk for developing a urinary tract infection as he has repeatedly in the past,” Senior Judge Andre Davis wrote in a concurring opinion.

The 4th Circuit includes Maryland, West Virginia, Virginia, South Carolina, and North Carolina, where a political battle has raged in recent weeks over a law called HB2 that protects public establishments from being forced to allow biological males and females to have access to restrooms and locker rooms of the gender with which they identify. LGBT advocates have challenged HB2 as discriminatory in federal court, and today’s decision could set a precedent for that case—at least as it relates to restroom use in public schools.

The ruling also strengthens the arguments of transgender students who file Title IX discrimination claims against school districts over restroom use. The U.S. Department of Education ruled in 2014 that Title IX, which prohibits discrimination on the basis of sex in educational institutions, also applies to cases of gender identity.

The department has so far left the practical implications of that ruling ambiguous and dealt with school districts on a case-by-case basis. But the 4th Circuit’s opinion interpreted Title IX in such a way that anything less than allowing students to use the restroom of the gender with which they identify could be considered discriminatory. Though the court did not negate the need for single-sex restrooms in public schools, it said that a student’s sex can be defined as his or her gender identity.

In a dissent, Judge Paul Niemeyer noted the court’s audacity in redefining “sex” to mean gender identity: “This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.”