N.C. transgender bathroom law could be decided in Va.
Richmond, Va. – — The fate of North Carolina’s new law aimed at restricting restroom use by transgender people could be determined in Virginia, where a school board has ordered a teenager to stay out of the boys’ room.
The 4th U.S. Circuit Court of Appeals in Richmond could rule any day now in the case of Gavin Grimm, who was born female but identifies as male. Grimm says he has to take a “walk of shame” to use a restroom at Gloucester High School.
Whatever the judges decide, the impact will be far more sweeping than what Grimm envisioned when he challenged the policy last year.
“I did not set out to make waves — I set out to use the bathroom,” Grimm says.
North Carolina’s bathroom bill was unveiled, debated and signed into law in a single day last week, two months after the appeals court in Richmond heard arguments in Grimm’s case. But transgender students and other plaintiffs who filed suit Monday made similar arguments as they asked for a permanent federal injunction preventing North Carolina authorities from enforcing it.
Among other things, the North Carolina law directs public schools, public universities and government agencies to designate bathrooms and locker rooms for use only by people based on their biological sex, and says transgender people can only use bathrooms matching their gender identity if they’ve had their birth certificates changed, which in North Carolina usually requires sexual reassignment surgery.
The law has prompted a national backlash. Businesses and politicians have announced boycotts of North Carolina, and legal challenges ensure that the wedge issue will dominate the Republican governor’s re-election campaign against his Democratic challenger.
Advocates on all sides will closely read the ruling, since U.S. District Judge Thomas Schroeder in Winston-Salem, North Carolina, an appointee of President George W. Bush, will have to adhere to any precedents set by the appellate court, said Joshua Block, the American Civil Liberties Union lawyer representing Grimm.
“One way or another, what happens in Gavin’s case is likely going to set the rules of the road for how the North Carolina case proceeds,” Block said.
Grimm alleges that school board policy requiring him to use girls’ restrooms or a single-occupancy unisex bathroom available to all students violates Title IX of the U.S. Education Amendments of 1972, the federal law prohibiting sex discrimination in public schools. He also says the policy denies him equal protection rights guaranteed by the U.S. Constitution.
The North Carolina suit raises similar claims, but the appellate court has focused on the Title IX question. Since Grimm’s trial judge has yet to decide constitutional issues, the appellate ruling “won’t provide guidance about the constitutionality of the North Carolina law,” said Kevin Walsh, a University of Richmond expert in constitutional law and federal courts.
The U.S. Justice Department filed a “statement of interest” in Grimm’s case in July declaring that failure to allow transgender students to use restrooms that correspond with their gender identities amounts to sex discrimination under Title IX. In North Carolina, gay rights advocates warned that the new law puts billions of dollars in federal educational funding at risk.
North Carolina’s law also bars local governments from making their own restroom ordinances, providing other protections from discrimination based on sexual orientation and gender identity, or requiring businesses to pay higher wages or paid sick leave, raising authority questions that aren’t at issue in the Virginia case.
Block sees a possible road map in the 4th Circuit’s ruling striking down Virginia’s same-sex marriage ban. A federal judge later told North Carolina lawmakers that the appellate court made such laws unconstitutional throughout the five-state circuit, which also includes South Carolina, Maryland and West Virginia. The U.S. Supreme Court later legalized gay marriage nationwide.
The use of public facilities by transgender people has emerged as the next most important legal issue for LBGT advocates, and North Carolina is the first state to require public school and university students to use only bathrooms that match their birth certificates, according to the National Conference of State Legislatures.
“I think there is no question that this could wind up at the Supreme Court,” said University of North Carolina law professor Maxine Eichner.
Grimm, 16, said he started refusing to wear girls’ clothes by age 6 and told his parents he was transgender in April 2014 — a year before Olympian athlete and reality TV star Bruce Jenner changed into Caitlin.
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