Now that the U.S. Supreme Court has agreed to accept the case of a transgender student in Virginia seeking to use the restroom consistent with his gender identity, anti-trans briefs are piling up before justices urging a ruling against him.
The briefs were filed in litigation initiated by Gavin Grimm, who was denied access to the restroom consistent with his gender identity at Gloucester County Schools and asserted Title IX of the Education Amendments of 1972 guarantees him access to the boys’ room. Although the district court ruled against Grimm, the U.S. Fourth Circuit Court of Appeals ruled in his favor.
Much of the case is based on a January 2015 letter from the Obama administration asserting schools are required, based on the provision of Title IX barring schools from discriminating on the basis of sex, to allow transgender students to use the restroom consistent with their gender identity.
Gloucester County Schools, which submitted the petition for certiorari seeking review of the Fourth Circuit decision, was first out of the gate with a brief last week, although anti-trans groups subsequently submitted friend-of-the-court briefs this week seeking a ruling in favor of the school.
The 81-page petitioners’ brief on behalf of Gloucester County Schools was filed by Stanford University attorney Jonathan Mitchell, the D.C.-based Schaerr-Duncan LLP and the Richmond-based Harman, Clayton, Corrigan & Wellman. The attorneys contended the Fourth Circuit erred in its interpretation of the prohibition on sex discrimination in Title IX to apply to transgender students.
“In short, the majority had no linguistic basis for holding that the term ‘sex’ in Title IX could have been understood to refer to gender identity rather than the objective physiological characteristics distinguishing men from women—much less make gender identity override those physiological characteristics,” the brief says.
Among the friend-of-the court briefs filed before the Supreme Court, one was submitted by the Liberty Counsel and urges the court to reject guidance made by the Obama administration on behalf of transgender students.
“The Departments’ directive places children at risk by providing sexual predators with greater access to children if they simply masquerade as the opposite sex,” the brief says. “This is particularly concerning since less than one percent of students likely identify as transgender. Consequently, the Departments are requiring that 99+ percent of students give up their privacy and safety so that less than one percent can allegedly be made comfortable by entering a private space that matches what they have learned to understand is their ‘internal sense of gender.'”
The anti-LGBT Family Research Council jointly filed a brief with the North Carolina Values Coalition arguing education policy should be decided at the local level. The brief criticizes the Obama administration guidance, saying it threatens the liberty of students by invading their privacy and makes law when the responsibliity should be left to the legislature.
Travis Weber, an attorney with FRC who helped file the brief, said in a statement local communities like Gloucester County should “be left alone to set their own policies, and not suffer federal interference on such an issue.”
“According to the Obama administration’s Department of Education and Department of Justice — and this is the issue in this case — children should be forced to sacrifice their expectations of privacy at the behest of one Washington bureaucrat directing who they shall be made to use the shower, locker room or bathroom with,” Weber said. “This is unconscionable.”
Filing a brief on behalf of the anti-LGBT National Organization for Marriage was John Eastman, board chair of the organization, who argues courts shouldn’t have to defer to the Obama administration guidance.
“The radical re-writing, by a relatively low-level, unelected bureaucrat, of the statutory and regulatory exemption for same-sex intimate facilities from the general Title IX prohibition of sex discrimination that gave rise to this case, contravenes the Constitution’s Article I requirement that the legislative powers are vested in Congress, as well as the Article III mandate that the judicial power, including the authority to interpret the laws, is vested in the courts,” Eastman writes.
The next step in the process is a reply brief filed by the American Civil Liberties Union on behalf of Grimm, which is due Feb. 23.