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Appeals court hears trans student's challenge to school's bathroom policy

Sixteen-year-old Gavin Grimm has been barred from using the boys' bathroom at his high school. On Wednesday, the 4th Circuit Court of Appeals hears his case.
This Aug. 25, 2015 photo shows Gavin Grimm leaning on a post on his front porch during an interview at his home in Gloucester, Va. (Photo by Steve Helber/AP)
This Aug. 25, 2015 photo shows Gavin Grimm leaning on a post on his front porch during an interview at his home in Gloucester, Va.

RICHMOND, Virginia  Gavin Grimm is hardly the first 16-year-old to dislike high school. As many a John Hughes’ movie can attest, it’s practically the birthright of anyone not predestined for athletic prowess, cool clothes, or perfect skin. He is, however, one of few 16-year-olds who, on top of the social and academic pressures that accompany junior year, has the added stress of trying to never go to the bathroom.

“Once a day at max, though I try very hard not to go at all,” Gavin told MSNBC of the bathroom habits he’s developed while attending public high school in Gloucester, Virginia, a conservative enclave in the eastern part of the state. “At this point, I’ve just become very good at holding it.”

Attempting to make it through a seven-hour school day with one bathroom break, tops, probably seems unthinkable to most people. In any event, it’s certainly unhealthy -- Gavin has incurred several urinary tract infections as a result. But for him, there are no other options.

A transgender boy, Gavin has been barred from using the boys’ restroom because he was designated a girl at birth. It’s a recently adopted policy that he’s currently challenging under Title IX of the 1972 Education Amendments, which protects students from sex discrimination, and the Equal Protection Clause of the United States Constitution.

On Wednesday, the 4th Circuit Court of Appeals will hear oral arguments in his case, G. G. v. Gloucester County School Board.

His is the first case in which a federal appeals court will weigh in on “the bathroom” question -- an issue that has fast become the latest front in the battle for transgender rights. Last year, a handful of states introduced bills that would have required people to use the bathrooms corresponding with the gender assigned to them at birth. For most people, such policies aren’t a problem. But for transgender people, whose expressed or experienced gender differs from the one designated at birth, they are.

“Access to restrooms is really about being able to participate fully in public life,” said Ilona Turner, legal director at the Transgender Law Center, in a phone interview with MSNBC. “If you don’t have a place to go to the bathroom safely, you really can’t leave the house. You can’t go to work. You can’t go to school.”

None of the proposed “bathroom bills” passed last year. But more are expected to follow in 2016 at both the state and local level, putting students like Gavin in an uncomfortable and potentially dangerous situation. Already, a bill that would prevent transgender students from using public school facilities consistent with their gender identities is moving forward in the South Dakota House of Representatives. And a Republican lawmaker in the Virginia House of Delegates has submitted a bill that would require restrooms in schools and public buildings be used only by members of the corresponding anatomical sex. Anyone caught using the “wrong” restroom would be subject to a $50 fine.

“Terrified that a thought-crime was going to send me to hell”

Gavin’s trouble at school started in the spring of 2014, when the mental anguish he experienced from having to conceal his gender identity became so severe, he had to miss the second semester of his freshman year. By all accounts, he was suffering from gender dysphoria, a condition the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines as “clinically significant distress” arising in people whose gender assigned at birth differs from the one with which they identify. As treatment, the DSM-5 recommends a broad set of options including counseling, cross-sex hormones, social and legal transition to the desired gender, and sex reassignment surgery.

In April 2014, as he was taking a home-schooling program, Gavin told his parents he was transgender. To his surprise, they took it pretty well.

“I was raised, unfortunately, very religiously -- Southern Baptist, dogmatic, that kind of general closed-minded type of religion. And so a lot of my fears came from the religion-based side of things,” said Gavin. “In fact, I think a lot of the fears [about coming out to my parents] were really internalized fears. In order for me to accept who I was took a very long journey to realize that I did not believe in any of those things and didn’t have to be terrified that a thought-crime was going to send me to hell.”

Though he acknowledges his parents “struggled mildly” with the news, Gavin said that “neither have any religious opposition to who I am now.”

“They pretty much got behind me and supported me from day one when I came out,” he said.

“I’m just a boy”

Shortly after coming out to his parents, Gavin began seeing a psychologist and started living his life in accordance with his male gender identity. In July 2014, he successfully petitioned the Circuit Court of Gloucester County to legally change his name to Gavin. Later that year, he would begin receiving hormone treatment, which deepened his voice and made his facial hair start growing in. When he got his driver’s license in June 2015, the Virginia Department of Motor Vehicles approved his request for the sex designation to be “M” for male.

He was as much of a young man as he could be in the eyes of Virginia. But that acceptance stopped at the steps of Gloucester High School.

When Gavin returned to school in the fall of 2014, he told his principal about his gender dysphoria and asked permission to use the boys’ restroom consistent with his treatment. The school initially approved, and Gavin was able to use the boys’ restroom for seven weeks without any incident -- at least, as far as he could tell.

“Genuinely, there was not a single confrontation, not a single funny look, not a single double take. Nothing like that happened at any point while I was using the correct restroom,” Gavin said. “Sure, there were peers who had concerns. But the loudest voices of opposition tended to come from adults in the county.”

Citing concerns from members of the community over students’ privacy, the school board decided to take up Gavin’s bathroom use at its meeting that November. Gavin attended and made his case before dozens of residents, including some of his fellow students, to be able to “use the restroom in peace.”

“This could be your child, your sister, your brother, your niece, your nephew” he pleaded before the school board at their November meeting. “I’m just a human. I’m just a boy.”

But his call for compassion went unheeded. Several speakers -- mostly adults -- repeatedly referred to Gavin as a girl and expressed concerns for the other students' safety.

"Where does it end?" asked local pastor Ralph VanNess, a parent at Gloucester High School. "When we have a young man that wants to identify themselves as a young lady and go into the young ladies' room, where does it end?"

Savannah Williams, a senior at Gloucester High School, wondered why Gavin would feel uncomfortable using the girls' bathroom as all you can see are "ankles and feet." She later said that Gavin's presence in the boys' bathroom would scare other students off and make school too difficult to manage. "If you're worried about going to the restroom and you hold it for five hours, how effective are you going to be  in fourth-block Spanish?" she said, in fact spelling out the very problem Gavin now faces. "You can't think. It's not sensible."

Terry Brennan, who with no family members at the school admitted he had "no dog in this fight," warned that allowing Gavin to use the boys' bathroom would "open the door for something bad to happen to someone else's child." And Joy Sampson, putting it more bluntly, said :"If you open up these restrooms where a boy and girl can use at the same time, you are looking for future sex violations, future rapes, sex in bathrooms, our pregnancies are going to go up, STD rates, and it's going to be a hard time in Gloucester County."

The school board voted 6-1 the next month to approve a policy limiting the use of the restroom and locker room facilities to the corresponding biological sex of the students.

“It’s very ‘othering’”

Under the school's current policy, Gavin has three options available to him when he has to go to the bathroom: He can use the one in the nurse’s office, he can use one of three single-stall unisex bathrooms, or he can use the girls’ restroom. None are acceptable in his eyes.

If he absolutely has to go, Gavin opts for the nurse’s office, as he fears using the girls’ room while presenting as a boy will make his female peers uncomfortable. Using the unisex restroom, meanwhile, is out of the question.

“Barring an extremely dire situation, no, I would not go in there,” Gavin said of the unisex bathroom. “There’s a mild aspect of principle behind that motivation. But the primary reason that I just would not use it is it causes me a lot of discomfort. It’s very ‘othering.’ It sort of puts a magnifying glass on my already existing conflicts with my gender identity and physical sex.”

U.S. District Judge Robert Doumar, a President Ronald Reagan appointee, did not see it that way. At the trial court hearing last summer, he appeared wholly skeptical of Gavin’s argument, saying he did not understand how Gavin’s using the unisex restroom, the girls’ bathroom, or the one in the nurse’s office constituted “irreparable harm” -- one of the factors courts consider in deciding whether to grant a preliminary injunction. Doumar dismissed the Title IX argument outright, even before a lawyer for the U.S. Department of Justice who had come to argue in Gavin’s favor on the Title IX question had been given a chance to speak. He raised concerns about the privacy and safety of nontransgender students, and he also repeatedly asserted that being transgender was “a mental disorder.”

Less than two months later, Doumar rejected Gavin’s request for a preliminary injunction that would have allowed him to use the boys’ bathroom as his case proceeds.

“Our position all along has been that the district court got this one wrong,” said Gavin’s lawyer Joshua Block, senior staff attorney at the ACLU’s Lesbian, Gay, Bisexual, and Transgender Project. “You only get to go to school once in your life. You don’t get a do-over. You don’t get a chance to go back and have a good sophomore or junior year. This is going to be Gavin’s high school experience for the rest of his life, and these are critical years for development.”

Testing the bounds of Title IX

Though no federal law exists explicitly barring discrimination on the basis of gender identity, there have been a good number of court decisions in the last 30 years that have found discrimination against transgender people to be a form of sex discrimination -- already prohibited under Title IX, Title VII of the 1964 Civil Rights Act, the 1974 Equal Credit Opportunity Act, the 1994 Violence Against Women Act, and the Fourteenth Amendment’s Equal Protection Clause, to name a few. Numerous federal agencies have also interpreted existing bans on sex discrimination to cover discrimination based on gender identity as well -- including the Department of Justice and the Department of Education, both of which filed a 40-page brief with the 4th Circuit in support of Gavin.

Block of the ACLU argues that the court should show deference to the these agencies’ interpretations of federal statutes. But the school board maintains that deference is only appropriate when a regulation is “ambiguous.” In the case of Title IX, the school board argues, the language is clear: Transgender students are not protected. Rather, its brief states, “The plain meaning of the regulation is that schools are permitted to segregate boys from girls based on their biological sex for purposes of restroom use, as long as the girls’ facilities are comparable to the boys’ facilities.”

Whether Title IX prohibits discrimination against transgender students is one of the major questions the 4th Circuit will have to answer, setting precedent among the five states in its jurisdiction and potentially settling a longstanding dispute in Virginia about whether public schools can implement trans-inclusive policies in line with Department of Education’s guidance.

According to Gail Deady, the Secular Society Women’s Rights legal fellow at the ACLU of Virginia, only two out of 95 counties in Virginia have adopted policies that would allow students to use bathrooms in line with their gender identities, and one of them -- Fairfax County -- is currently facing a lawsuit filed by a conservative group and unnamed student for expanding the definition of protected classes beyond the state’s. (Virginia, like most states in the country, does not include “gender identity” in its list of protected characteristics.)

“Doing this in the hopes that it might help anyone else”

Going into Wednesday’s hearing, Gavin insists he has “absolutely no expectations.”

“I’m not a lawyer,” he said. “I’d rather not build myself up for potential disappointment.”

Nevertheless, the high stakes of the case are not lost on him. Keenly aware that his legal battle comes at a critical moment for transgender rights, Gavin is hopeful his suit will not only allow him to use the correct restroom, but also help others who are struggling.

“If my fight and my struggle helps even one child not have to go through this, I will consider that an enormous success,” he said. “I’m not doing this just because I’m thinking solely about myself; I’m doing this also in the hopes that it might help anyone else. That’s what motivates me.”

Editor's note: This story has been updated to reflect comments made during the Gloucester County School Board's meeting on November 11, 2014.