From AU's Wall of Separation blog:
After the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which recognized same-sex couples’ right to marry, the fight to attain equal treatment for all advanced to a new and much-needed area of the law: protecting the rights of transgender persons.
Gavin Grimm, now 17, is a senior at a public high school in Gloucester County, Va. NPR reported that Grimm came out as trans during his freshman year. He was initially allowed to use the boys’ bathroom, but complaints from parents put a stop to that. The school board eventually instituted a policy that requires all students either to use the bathroom that corresponds with the gender they were assigned at birth or to use a designated single-stall restroom in the school.
In response to that discriminatory policy change, Grimm sued in federal court, arguing that the school was discriminating against him in violation of Title IX (a federal law that protects against discrimination in education on the basis of sex) and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. As he told NPR: “The alternative facility was a unisex bathroom. I’m not unisex. I’m a boy. And there’s no need for that kind of ostracization.”
When describing how the bathroom battle has affected him, Grimm was blunt.
“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. And the humiliation can come when I least expect it,” he wrote in a column for The Washington Post.
Grimm lost the case before the trial court. The U.S. Court of Appeals for the Fourth Circuit, however, overturned that ruling in light of the U.S. Department of Education’s guidance about how Title IX protects the rights of trans students. The school board appealed that decision to the U.S. Supreme Court.
In August the Supreme Court voted 5-3 to stay the appeals court’s ruling, meaning that although Grimm won in the Fourth Circuit, the court’s order was not implemented, and he was still not allowed to use the boys’ bathroom. Justice Stephen Breyer said that he voted for the stay as a “courtesy” to the conservative Justices, to keep the status quo in place while the matter was pending.
On Friday, the Supreme Court announced that it will hear Grimm’s case, Gloucester County School Board v. G.G. Given that the Court remains one justice short of full membership, and we have no idea how long we must wait before we once again have nine justices, it’s difficult to say what the outcome will be.
“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,” Grimm wrote.
You can bet that Religious Right groups will argue that Grimm and other transgender students should be forbidden to use the bathroom of their choice to respect the religious beliefs of parents or students who oppose transgender rights on religious grounds.
Given what is at stake, Americans United expect to file a friend-of-the-court brief to respond to those contentions. Although it’s too early to say what our argument will be, in cases like this we usually stress that religious freedom does not include the right to use the government to impose your religious beliefs on others. No American should have his or her rights denied because of religious objections to equality.
Americans United will continue to fiercely oppose any attempts to use religion to deny someone else’s civil rights.