The Supreme Court said Friday that it will decide whether the Obama administration may require public school systems to let transgender students use bathrooms that align with their gender identity, putting the court once again at the center of a divisive social issue.
The justices accepted a petition from the School Board of Gloucester County, Va., seeking to overturn a lower court’s order that 17-year-old Gavin Grimm, who was born female but identifies as male, be allowed to use the boys’ restroom during his senior year of high school.
In August, the Supreme Court voted 5 to 3 to temporarily stay that lower court's ruling while it remained on appeal. In that order granting the stay, Justice Stephen G. Breyer said he was joining the conservative justices as a "courtesy" that would preserve the status quo while the court considered whether to accept the case.
It is the most high-profile case the eight-member court has accepted since the death of Justice Antonin Scalia in February. The case will not be heard until next year, and it is unclear whether Scalia’s seat will be filled by then.
In an interview Friday, Grimm said it was unfair that he will continue to be barred from the boys’ bathroom at Gloucester High until the case is decided. He said he tries to avoid going to the bathroom altogether at school but uses the nurse’s bathroom when necessary.
“It means I’m going to have to spend another school year where I should be focused on college plans and prom and graduation . . . not able to use the bathroom at my school,” Grimm said.
Grimm, referred to as G.G. in court papers, came out as a transgender boy in his freshman year of high school and, as a result of hormone therapy, has a deep voice and facial hair, his lawyers told the court.
“We’re prepared to make our case to the court and to make sure the Supreme Court and people in general see Gavin as who he is and see trans kids across the country for who they are,” said Grimm’s attorney, Joshua Block of the American Civil Liberties Union. Grimm “is not trying to dismantle sex-segregated restrooms. He’s just trying to use them.”
Troy Andersen, chairmen of the Gloucester County School Board, said in a statement that the board is “grateful that the Supreme Court has granted the School Board’s petition in this difficult case.”
“The board looks forward to explaining to the court that its restroom and locker room policy carefully balances the interests of all students and parents in the Gloucester County school system,” he wrote.
Grimm sued the board, alleging that its policy — requiring that students use bathrooms corresponding with their “biological sex” — is discriminatory and violates his civil rights.
The U.S. Court of Appeals for the 4th Circuit sided with him in April, ruling that his case could move forward. It deferred to the Obama administration’s position that Title IX, the federal law banning sex discrimination in public schools, protects the rights of transgender students to use school bathrooms that align with their gender identity.
A month after the 4th Circuit decision, the U.S. Education Department issued that same guidance to the rest of the nation’s public schools.
The move sparked a backlash and a lawsuit by several states, which argued that the administration had overstepped its authority. A federal judge in north Texas issued a preliminary injunction in August, meaning schools do not have to follow the department’s guidance.
The Gloucester board’s petition to the court says the department’s position “presents an extreme example of judicial deference to an administrative agency’s purported interpretation of its own regulation.” It was developed by “a relatively low-level official in the Department of Education” without proper notice and comment, said the petition filed by the board’s attorney, Kyle Duncan.
The petition said the case provides the court an opportunity to reexamine a 1997 precedent, Auer v. Robbins, that affords deference to an agency's interpretation of its regulations. It has been criticized by several conservative justices, but the court earlier this year turned down a chance to revisit it and did the same in accepting the Gloucester case.
Conservative legal groups had urged the Supreme Court to take the case.
“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” said Gary McCaleb, senior counsel at the Alliance Defending Freedom. “The Supreme Court should reverse the 4th Circuit’s ruling, which is out of step with the law and previous federal court precedent.”
Transgender students say using bathrooms that correspond with their gender identity is a civil right and critical to protect their well-being.
“This is one of the most important days in the history of the transgender movement,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in a statement. “Whatever the court rules . . . may ensure that transgender people are accepted and included as equal members of our society, or it may relegate them to outsiders for decades to come.”
The case is Gloucester County School Board v. G.G.
Social-media ban
The court also announced Friday that the justices will consider whether a North Carolina law that bans convicted sex offenders from Facebook and other social-media sites violates First Amendment rights.
The court will take a case from Lester Packingham, who was convicted at age 21 of statutory rape involving a 13-year-old.
After serving his sentence, police noticed that Packingham had posted on Facebook his reaction to getting a traffic citation dismissed.
“Thanks JESUS,” he wrote.
Packingham was prosecuted under a 2008 North Carolina law that bars people on its sex-offender registry from accessing websites that could lead to contact with minors.
The state Supreme Court upheld the law, saying there were other channels of information open to those on the list.
A group of First Amendment scholars urged the court to take Packingham’s case. “Sites such as Facebook and Twitter have become a prominent and uniquely effective form of communication for which there is virtually no equivalent substitute,” they wrote.
