RICHMOND, Virginia – The practical matter of where a transgender student can go to the bathroom at his public high school 60 miles from here turned philosophical Wednesday morning, as a three-judge panel on the 4th Circuit Court of Appeals wrestled with the age-old, yet ever-evolving question: What is sex?
Is it “physical,” to borrow the term used by Judge Paul Niemeyer, a President George H.W. Bush appointee*, during oral arguments in the case of G. G. v. Gloucester County School Board, or is it “psychological”? And if sex is made up of an aspect of each, which criterion should schools use in deciding who can access sex-segregated facilities?
Does the physical anatomy that separates girls from boys win out? Or does the gender identity experienced in the mind and expressed in behavior dictate the terms?
“What is sex?” the judges kept asking in court. And, by extension, what is sex discrimination?
The answers will determine whether 16-year-old Gavin Grimm and many transgender students like him can use public school facilities consistent with their gender identities, rather than the anatomical makeup with which they were born. It’s an issue that has fast become the latest front in the battle for transgender rights, as Republican lawmakers across the country seek to pass legislation that would require people to use public restrooms in line with their “biological” sex, while LGBT advocates fight to implement nondiscrimination protections for transgender people.
Wednesday’s hearing marked the latest step in Gavin’s year-long legal battle to use the boys’ bathroom at Gloucester High School in eastern Virginia. A transgender boy, Gavin lives his life in accordance with his male gender identity. He legally changed his name, takes hormone therapy to deepen his voice and grow facial hair and holds a driver’s license that says “M” for male. But because he was designated a girl at birth, Gavin is required to use the bathroom in the nurse’s office at school, a single-stall unisex bathroom, or the girl’s room.
The school board recently adopted this policy following two highly contentious meetings at the end of 2014, during which dozens of adults warned that Gavin’s use of the boys’ room would violate other students’ privacy and safety. Shortly after, Gavin filed a federal lawsuit under Title IX of the 1972 Education Amendments, which protects students from sex discrimination, and the Equal Protection Clause of the United States Constitution.
Wednesday’s hearing marked the first time a federal appeals court has addressed the “bathroom issue” as it relates to sex discrimination in public education, and – as always, with oral arguments – it offered little indication as to how the judges would rule. Niemeyer seemed skeptical of Gavin’s position, repeatedly pressing his attorney Josh Block of the American Civil Liberties Union’s LGBT Project about why the school should base access to sex-segregated facilities on gender identity rather than anatomy, as both appear to make up the modern understanding of “sex” – a protected characteristic under Title IX.
“Your answers say the school should be focusing on the psychological – what the person identifies with – as opposed to what the person’s physical anatomy is,” said Niemeyer. “And I’m just wondering, what gives you the basis to make that interpretation under [Title IX?]”
“That’s what the Department of Education says,” said Block, referring to the DOE’s guidance that Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity as well.
“I don’t read that in the rule,” said Niemeyer, taking a very literal interpretation of Title IX. “I’ve got the rule right before me and it says a school recipient may provide a separate toilet, locker room and shower facilities on the basis of sex. But such facilities provided for students of one sex shall be comparable to such facilities provided to students of the other sex. And that’s the regulation. The regulation says the school can make a decision based on sex and have separate facilities.”
Despite that exchange, Block seemed encouraged following the hearing that Niemeyer acknowledged the difference between “physical” and “psychological” sex, and that the two can be in conflict in certain cases. “Judge Niemeyer knows was ‘transgender’ is,” said Block while exiting the courtroom.
Judge Andre Davis, meanwhile, a President Obama appointee, asked the most questions of David Corrigan, the attorney representing the Gloucester County School Board, who argued that “‘transgender’ is not a suspect class” that merits closer scrutiny by the courts when an equal protection claim is brought in the same way that sex-based claims do.
“Your argument is rooted in this notion that some wise person said, ‘Biology is destiny.’ But in fact, it’s neurobiology, isn’t it, that’s destined,” said Davis. “This is 2016. And so the question is, as Judge Niemeyer suggested: What is the meaning of sex in the year 2016?”
“Our position is that the meaning of sex is based on the person’s genitalia,” said Corrigan.
“Are you going to be able to find a reputable psychologist, or neuroscientist, or psychiatrist to support your position?” asked Davis.
“I don’t think it matters,” replied Corrigan.
“I thought we were way past the notion that sex, in terms of discrimination law, means no more and no less than biology,” Davis said. Later, he took issue with the school board’s “top-down” approach in adopting a policy that overruled the principal, who for seven weeks allowed Gavin to use the boys’ bathroom in 2014. There were no problems during that time, according to court documents.
“The principal is the CEO,” said Davis.”Everything you read these days is, what we need in public education are strong principals. And this principal was doing it. This principal had the situation under control, had the school operating – from all that appears in the record – in a really great way. And then some kind of top-down imposition comes along and disrupts what the principal was managing in a very, very humane and orderly way. It’s ironic, isn’t it?”
Judge Henry Floyd, a President Obama appointee, asked the fewest questions of the bunch, and there was little to take away from them. In perhaps an encouraging sign for Gavin, however, Floyd was also on the panel that heard Virginia’s marriage equality case two years ago and wrote the majority opinion that struck down the state’s ban.
In a press conference at the ACLU of Virginia following the hearing Wednesday, Block said he was pleased all the judges seemed “very engaged” on the issue. However, he added, “We learned a long time ago not to try to predict what a decision is going to be based on oral argument.”
Asked what it was like to be the focal point of such a high-profile dispute at only 16 year old, Gavin began to cry. “It’s not easy,” he said. “But I will do my best to help anyone that I can.”
*Correction: An earlier version of this article stated that Judge Paul Niemeyer was appointed to the 4th Circuit Court of Appeals by President Ronald Reagan.