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Virginia school district vows to fight on despite losing transgender bathroom ruling

A federal judge said the policy was discriminatory. but the district continues to fight for it.

Grand Marshals James Esseks (L) and Gavin Grimm attend the 2017 New York City Pride March on June 25, 2017 in New York City.  CREDIT: Photo by Michael Stewart/Getty Images
Grand Marshals James Esseks (L) and Gavin Grimm attend the 2017 New York City Pride March on June 25, 2017 in New York City. CREDIT: Photo by Michael Stewart/Getty Images

A Virginia school district plans to appeal a federal judge’s decision that the district discriminated against a transgender student, Gavin Grimm, they stopped from accessing the boys’ restroom.

American Civil Liberties Union (ACLU) lawyers argued that Title IX, a civil rights law that says no one should be subjected to discrimination under any education program or activity receiving federal dollars, covers discrimination based on gender identity.

U.S. District Judge Arenda Wright Allen mentioned similar cases on transgender student rights in Maryland and Wisconsin and wrote, “This Court joins other courts that have concluded that because the [district’s bathroom] Policy relies on sex-based stereotypes, it is a sex-based classification.”

But the school district announced on Friday that it will appeal. According to CNN, the district argued that the case is moot, because Grimm already graduated from high school and the “better interpretation” of Title IX law is in the district’s policy that “when separating boys and girls on the basis of sex in restrooms and similar facilities, schools may rely on the physiological differences between males and females rather than students’ gender identity.”

Gavin Grimm, 17, center, is photographed at his home with his parents, David Grimm, left, and mom Deirdre Grimm, in Gloucester, Virginia, on Sunday, August 21, 2016. CREDIT: Nikki Kahn/The Washington Post via Getty Images
Gavin Grimm, 17, center, is photographed at his home with his parents, David Grimm, left, and mom Deirdre Grimm, in Gloucester, Virginia, on Sunday, August 21, 2016. CREDIT: Nikki Kahn/The Washington Post via Getty Images

The school needs the judge’s permission to appeal the case and then the 4th U.S. Circuit Court of Appeals must agree to hear it. According to The Associated Press, Joshua Block, an ACLU attorney who represents Grimm, said, “We have no problem with that” and added, “We think the vast majority of courts have already ruled that these sorts of discriminatory polices violate [federal and constitutional protections]. And we’re confident the 4th Circuit would agree.”

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Gavin Grimm has been fighting for transgender student rights in court for years. Before the legal battle started, Gavin and his parents told administrators about his gender identity when he was a sophomore and subsequently, he used the boys bathroom. But some parents complained and the school board enacted a new policy in 2014 that said trans students couldn’t use restrooms that corresponded with their gender and would have to use “alternative private” bathrooms.

A federal judge ruled against Grimm in 2016. Then the U.S. Court of Appeals for the Fourth Circuit reversed this decision, causing the school to appeal to the U.S. Supreme Court. The Supreme Court stayed the Fourth Circuit’s ruling while it considered the case. Then, in light of the Trump administration’s 2017 rollback of guidance protecting trans students from discrimination, it issued an order to vacate and remand the lower court’s opinion.

These federal court decisions on transgender student rights are happening in the midst of attacks on trans student rights at the U.S. Department of Education. In February of this year, the department officially stated it wouldn’t investigate complaints from transgender students who were been denied access to bathrooms that correspond with their gender. Its position is that complaints about access to facilities from trans students are not included in Title IX.

In May, Education Secretary Betsy DeVos answered questions from members of Congress at a House Education and the Workforce Committee hearing. Rep. Jared Polis (D-CO)  asked her about the enforcement of protections for students in the LGBTQ community who are discriminated against at school. He mentioned recent court decisions that were favorable to trans student rights and asked what she would do to protect students in the LGBTQ community from harassment and discrimination.

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DeVos replied, “I think part of what you’ve referred to, with regards to transgender students, courts have been mixed on that and this body has not opined or updated or addressed that. Until the Supreme Court opines or this body takes action, I will not make up law from the Department of Education.”