January 26, 2016 at 7:23 pm EST | by Michael K. Lavers
4th Circuit to hear transgender student lawsuit

Gavin Grimm, Title IX, gay news, Washington Blade

Gavin Grimm (Photo courtesy of Gavin Grimm)

A federal appeals court on Wednesday will hear the case of a transgender student who is challenging a Virginia school district’s controversial restroom policy.

The 4th U.S. Circuit Court of Appeals in Richmond will hear oral arguments in a lawsuit that Gavin Grimm filed against the Gloucester County School Board over its policy that prevents him from using the boys restroom or locker rooms.

Grimm, who is a student at Gloucester County High School, alleges the policy is unconstitutional under the 14th Amendment’s Equal Protection Clause. He also claims it violates Title IX of the U.S. Education Amendments of 1972 that prohibits schools that receive federal funds from discriminating on the basis of sex.

Joshua Block of the American Civil Liberties Union’s Lesbian, Gay, Bisexual and Transgender Project, who represents Grimm, on Monday told reporters during a conference call that his client has legally changed his name and gender marker on his identification. Block said Grimm “has effectively been banished to an alternative bathroom that continues to stigmatize him everyday.”

“Right now I feel humiliated and dysphoric every time I’m forced to use a separate restroom facility just so I can carry out a basic function of human life,” said Grimm.

The Gloucester County School Board in 2014 approved the controversial policy that requires students to use restrooms and locker rooms that correspond to their “biological gender.”

“I was spoken about as if I were some sort of creature on a pedestal for everyone to mock and make their comments about as if my rights to privacy and equal treatment aren’t the same as everybody else’s,” said Grimm, referring to the debate over the policy.

“The mere thought that my anatomy could be considered appropriate for public conversation by the people who have the power to bar me from the boys restroom for the rest of my high school career was not only terrifying, but dehumanizing,” he added.

U.S. District Judge Robert Doumar last July said the policy does not violate Title IX. He also dismissed Grimm’s request for an injunction that would have allowed him to use the boys restroom as his case works its way through the courts.

The Justice Department has argued in the Grimm case that Title IX requires school districts to allow trans students to use the restroom that corresponds with their gender identity.

The Equal Employment Opportunity Commission in a landmark 2012 ruling said employment discrimination based on gender identity amounts to sex discrimination under federal law. Then-Attorney General Eric Holder two years later said Title VII of the Civil Rights Act of 1964 bans workplace discrimination based on gender identity.

Wednesday’s hearing will mark the first time a federal appeals court will consider whether Title IX requires schools to allow trans students to use facilities that are consistent with their gender identity.

Grimm case could set Va. legal precedent

Virginia Attorney General Mark Herring last year said local school boards have the authority under state law to include sexual orientation and gender identity in their anti-discrimination policies.

The Fairfax and Albemarle Counties and Virginia Beach School Boards have implemented such provisions.

The Liberty Counsel last month filed a lawsuit that alleges members of the Fairfax County School Board violated Virginia law when it added sexual orientation and gender identity to the district’s anti-discrimination policy. A bill that state Del. Bob Marshall (R-Prince William Country) has introduced would prevent municipalities from enacting these LGBT-specific measures.

State Del. Mark Cole (R-Fredericksburg) earlier this month introduced a bill that would require people to use public restrooms that correspond with their “anatomical sex.” The Fredericksburg Republican has also put forth a nearly identical measure that includes the phrase “biological gender.”

Both bills would apply to local school boards.

“Gavin’s case will clarify whether Virginia school boards can rely on federal law when to implement transgender-inclusive policies, in particular restroom policies,” Gail Deady of the ACLU of Virginia told reporters during Monday’s conference call.

Block said in response to a question from the Washington Blade that Title IX “would preempt whatever the state law is” if the 4th Circuit were to rule in favor of Grimm.

“If this case doesn’t preempt state law, then it will really depend on the potential of the Virginia courts to sort of resolve these differing interpretations of Virginia law or for the General Assembly to clarify whether Virginia’s current non-discrimination statutes include sexual orientation and gender identity in the prohibitions on sex discrimination,” he added.

Michael K. Lavers is the international news editor of the Washington Blade. Follow Michael

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