From AU's Wall of Separation blog:
Gavin Grimm is the 17-year-old high-school senior at the center of the first U.S. Supreme Court case on the civil rights of transgender persons. At issue: Whether a provision in federal law known as Title IX, which forbids discrimination in public schools on the basis of sex, also protects transgender students who have been denied the equal use of school facilities based on their gender identity.
The case has garnered a lot of attention, and Americans United, along with the National LGBT Bar Association and co-counsel at the law firm Hogan Lovells, weighed in with a friend-of-the-court brief this week to explain that religious or moral disapproval of transgender persons may not justify the government’s discriminatory actions.
The case has had a somewhat tortuous history. Gavin, who is a transgender male, filed suit in 2015 after his school district stopped him from using the boys’ restrooms at school — instead relegating him to the use of a single-stall bathroom in the nurse’s office or to the two janitors’ closets that had been converted to single-occupancy bathrooms.
Gavin, with the help of the American Civil Liberties Union, argued that this action by the school board violated Title IX’s prohibition on sex discrimination, a prohibition that, according to Gavin and his lawyers, necessarily includes a prohibition on discrimination due to gender identity.
Originally, Gavin enjoyed the support of the Obama administration, which published a “Dear Colleague” letter — a type of administrative guidance that advises public officials on how to comply with the law — that agreed with Gavin’s interpretation of Title IX. Indeed, based on that guidance, the 4th U.S. Circuit Court of Appeals ruled in Gavin’s favor. Whether that court should have deferred to the Obama administration’s guidance in the way that it did was one of the questions that the Supreme Court agreed to answer when it took up Gavin’s case.
But then the Trump administration rescinded the guidance, thereby removing the basis for the appeals court’s decision.
The Supreme Court now must decide whether it will continue to hear the case as planned – oral argument is currently scheduled for March 28 — or if it will return it to the lower court to look at the issue again now that the Obama-era guidance is gone. The later course, if chosen, would also make it more likely that Judge Neal Gorsuch, recently appointed to the Supreme Court by Trump but not yet confirmed, would be able to hear the case as well.
But until the high court makes that decision, the case continues. AU is hoping to highlight important religious-freedom and Equal Protection concerns.
The school board voted to stop Gavin and all other transgender students from using the restroom that corresponds with their gender identity after holding two public meetings where community members were invited to comment about Gavin’s bathroom usage. Both meetings took on a religious tone, with commenters quoting Bible verses and describing their theological beliefs about gender identity. One commenter went so far as to say, “You do not have an unalienable right to choose your own sex; nature’s God chose it for you.”
These expressions of moral and religious disapproval of transgender persons have followed this case into the courtroom, with multiple briefs being filed on behalf of religious organizations that believe that being transgender is a sin; thus, they’ve asked the Supreme Court to rule against Gavin.
To be sure, many people hold deeply entrenched moral and religious beliefs regarding traditional sex roles and transgender people. And they are entitled to hold whatever views they wish. Religious freedom means the right to believe, or not, as one sees fit.
But the meaning and scope of Title IX, or indeed any law, are not bound, in any way, by the religious beliefs that some people may hold. The Supreme Court has made clear, time after time, that the government’s particular treatment of a group of persons may not be justified by reference to religiously motivated dislike of that group — such a justification risks violating separation of church and state.
That’s why Americans United and our allies filed a friend-of-the-court brief[ in the Supreme Court this week, to make clear that, whatever the religious beliefs of the school board’s constituents, those beliefs cannot justify the board’s actions here. Nor should the court in any way rely on the religious beliefs of some for its own analysis of Title IX. In fact, to the extent that any government actor were to accommodate the religious beliefs of some by restricting or denying the civil rights of others, that action would violate church-state separation.
No American should have his or her rights denied because of religious objections to equality. And Americans United will continue to fiercely oppose any attempts to use religion to deny someone else’s civil rights.
Follow Carmen Green online at @CNGinDC