February 23, 2017 at 5:46 pm EST | by Chris Johnson
Gavin Grimm makes case to Supreme Court on using the boys’ room

The ACLU filed its opening brief before the Supreme Court in the Gavin Grimm case. (Photo courtesy of American Civil Liberties Union of Virginia)

The ACLU filed its opening brief before the Supreme Court in the Gavin Grimm case. (Photo courtesy of American Civil Liberties Union of Virginia)

Oral arguments in Gavin Grimm’s case before the Supreme Court are more than one month away, but his lawyers shot their initial salvo Thursday making the case he should be allowed to use the restroom in his school consistent with his gender identity.

In its opening brief before the court, the American Civil Liberties Union makes seven key arguments for why Gloucester County Schools in Virginia should be required to allow Gavin to use the boys’ room. The argument are based on Title IX of the Education Amendments of 1972, which bars schools from discriminating against students on the basis of sex.

Under current policy, Gloucester County Schools forces Gavin to a separate unisex bathroom designated for him while other male students who aren’t transgender are able to use the boys’ room freely. That treatment, according to the ACLU, is discriminatory and stigmatizing for no reason other than Gavin is transgender.

Here’s a breakdown of the arguments on the 62-page brief on why current law compels Gavin’s high school to allow him to the restroom in the boys’ room even though Title IX has no explicit protections based on gender identity.

1. School policy subjects Gavin to discrimination

The ACLU makes the case the Gloucester County School Board singles out Grimm for “different treatment” because he’s transgender and thus acted unlawfully under Title IX.

“He, and only he, must use restrooms that humiliate him in front of his peers and stigmatize him as unfit to use the same restrooms as others,” the brief says. “He, and only he, is ‘subjected to discrimination’ ‘on the basis of sex’ under the policy.”

2. Gavin is subjected to discrimination based on sex

Bolstering its case the discrimination Gavin faces at Gloucester County Schools is unlawful under Title IX, the ACLU maintains the kind of sex discrimination explicitly barred under the law.

“A person’s transgender status is an inherently sex-based characteristic,” the brief says. “Gavin is being treated differently because he is a boy who was identified as female at birth. The incongruence between his gender identity and his sex identified at birth is what makes him transgender. Treating a person differently because of the relationship between those two sex-based characteristics is literally discrimination ‘on the basis of sex.'”

3. Title IX can’t be limited by assumptions of legislative intent

Disputing claims — most recently made by White House Press Secretary Sean Spicer — that Congress couldn’t have intended Title IX to include transgender people when the law was enacted in 1972, the ACLU argues enforcement of the law can’t be limited to lawmakers’ intent.

As precedent, the ACLU cites the unanimous 1998 U.S. Supreme Court decision in Oncale supporting that interpretation of the law, a decision written — perhaps surprisingly — by the late U.S. Associate Justice Antonin Scalia.

“The statute is not limited to discrimination against women and extends to sex discrimination ‘of whatever kind,'” the brief says. “Indeed, this Court has repeatedly instructed courts to construe Title IX broadly to encompass ‘a wide range of intentional unequal treatment.’ Sex-based discrimination that harms transgender individuals is a ‘reasonably comparable evil’ that falls squarely within the statute’s plain text.”

4. A restroom regulation doesn’t enable discrimination against Gavin

Gloucester County Schools has relied on a regulation to Title IX authorizing schools to provide separate bathrooms for boys and girls to bar Gavin from the boys’ room, but the ACLU argues that is differential, not discriminatory treatment.

“Gavin does not challenge the provision of separate restrooms,” the brief says. “It is not the existence of sex-separated restrooms that harms Gavin, but the Board’s new policy that is designed solely to prevent him from using those restrooms.”

5. Allowing Gavin to use the boys’ room won’t enable all students to use either restroom

Disputing the argument that allowing Gavin to use the boys’ room would enable all students to use either the girls and boys restroom by simply declaring a different gender identity, the ACLU says the school can still enforce a separate bathrooms rule for students of both genders.

“Transgender students do not gain access to the restrooms for the day by ‘simply announcing their gender identity,'” the ACLU says. “Usually, students and their parents meet with school administrators to discuss the student’s transgender status and plan a smooth social transition, just as Gavin and his mother did here.”

According to the ACLU, if a school has a concern a student is falsely claiming to be transgender, a “letter from a doctor or parent can easily provide corroboration.”

6. Letting Gavin use the boys’ room doesn’t endanger privacy of other students

Although anti-transgender advocates argue allowing transgender people to use the restroom consistent with their gender identity would endanger privacy by exposing others to nudity of the opposite sex, the ACLU argues that is not at issue in the pending case, which is merely about a bathroom, and there are ways to address those concerns.

“Difference can be discomfiting, but there are ways to respond to that discomfort without discrimination,” the brief says. “Gloucester High School has installed additional privacy protections and provides a private restroom for anyone uncomfortable using the same restroom as Gavin (or any other student).”

7. Speculation about problems for locker rooms, athletic team is unfounded

The ACLU rejects arguments that ruling in favor of allowing Gavin to use the boys’ room would enable disruption in locker rooms and athletic teams by asserting transgender people elsewhere are able to operate in those cases consistent with their gender identity.

“[A]thletic associations—including the NCAA and the Virginia High School League—already allow boys who are transgender to play on boys’ teams and allow girls who are transgender to play on girls’ teams without requiring genital surgery,” the brief says.

The brief also devotes considerable length to why the U.S. Fourth Circuit Court of Appeals, which ruled in favor of Grimm, correctly deferred under precedent of the 1997 Auer decision to the Obama-era guidance assuring transgender kids access to the restroom consistent with their gender identity. However, that point may now be moot in the aftermath of the Trump administration rescinding the guidance and information it doesn’t hold that view of Title IX.

Joshua Block, senior staff attorney and ACLU LGBT Project, said on Twitter the ACLU had already taken the opening brief to the printer because of a Thursday deadline at the time the administration rescinded the guidance.

Oral arguments in the case are set for March 28. The next step in the case, however, is the filing of friend-of-the-court briefs in favor of Gavin. They’re due March 2.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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