BY CHRIS JOHNSON, WASHINGTON BLADE
The U.S. Supreme Court may have nixed consideration of Virginia transgender student Gavin Grimm’s lawsuit, but another opportunity has presented itself before justices to make a nationwide ruling on bathroom access for transgender kids in school.
The Kenosha Unified School District in Wisconsin filed on Friday a petition before the U.S. Supreme Court seeking to reverse a decision by the U.S. Seventh Circuit Court of Appeals granting Ash Whitaker, a transgender boy, access to the school restroom consistent with his gender identity.
“By deeming transgender status as a sex-based classification, the Seventh Circuit has failed to heed this Court’s admonishment that lower courts should not create new suspect classifications,” the petition says.
The questions presented before the court are 1) whether school policies requiring boys and girls to use separate restrooms according to the biological sex is a violation of Title IX of the Education Amendments of 1972; and 2) whether such policies are a sex-based classification triggering heightened scrutiny under an equal protection analysis, as determined by the Seventh Circuit.
Should the Supreme Court grant a writ of certiorari — or agree to take up the case — and rule in favor of Ash, it could mean a nationwide ruling guaranteeing transgender students have access to the school restroom consistent with their gender identity.
“This is a matter of national importance,” the petition says. “The number of students in America’s public schools who label themselves as transgender is growing, and advocacy groups are pushing to create rights for these students. School districts, students, and parents across the country need guidance on this issue given the conflicting decisions by various courts, guidance which has been issued and withdrawn by the Department of Education, and the lack of any other definitive answers.”
But while transgender advocates may want Supreme Court review for a ruling in favor of trans bathroom access for transgender students nationwide, Kenosha seeks a decision enabling schools to make the decision on which bathroom is best for their students.
“This Court should accept review to resolve this conflict and to hold that a policy that merely reflects the anatomical differences between boys and girls, is not ‘sex stereotyping,'” the petition says. “Under such a policy, no one is required to conform their appearance or behavior to a particular sex stereotype. Instead it is applied uniformly to the sexes–male and female alike — and they are both required to use sex-distinct public restrooms.”
The petition also cites privacy concerns about transgender students using their bathroom of their choice, arguing “delicate issues of privacy should be left to local, elected boards of education.”
“School districts must be cognizant of the rights of their students’ parents,” the petition says. “Depriving parents of a say over whether their children should be exposed to members of the opposite sex, possibly in a state of partial undress in intimate settings, deprives parents of their right to direct the education and upbringing of their children.”
Both the district court and the Seventh Circuit ruled in favor of Ash after determining the prohibition on sex discrimination under Title IX also bars schools from denying transgender kids to school restroom in accordance with their gender identity.
The petition represents a second chance for the Supreme Court to consider the issue of bathroom access for transgender students after it nixed plans to the review the high-profile case of Gavin Grimm, who sued his Gloucester County high school in Virginia to use the restroom consistent with his gender identity.
Although the Supreme Court agreed to hear Gavin’s case, justices scrapped those plans after the Trump administration rescinded Obama-era guidance assuring transgender kids access to school restrooms consistent with their gender identity, remanding the issue for reconsideration before the U.S. Fourth Circuit Court of Appeals. The case has since been sent back to trial court.
Representing Ash in the lawsuit is San Francisco-based Transgender Law Center and the D.C.-based law firm Relman, Dane & Colfax, which in a joint statement predicted the Supreme Court would reject arguments against the decision granting Ash access to the boys’ room.
“The unanimous decision from the Seventh Circuit was correct and consistent with the decisions of other courts, which similarly have held that transgender students have the right to equal educational opportunities,” the statement says. “It is troubling that KUSD would go to such lengths to defend its discriminatory and harmful actions against Ash, a high school student who just wanted to be treated like any other boy, especially now that he has graduated and started college. We are confident that KUSD’s wrongheaded and legally incorrect position will continue to be rejected, as it has been at every stage of this case so far.”
The court will likely consider whether or not to take up the case during a conference after their term begins in September following its summer recess.