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Transgender Bathroom Battle Could Come Before Supreme Court

By Casey C. Sullivan, Esq. on June 02, 2016 | Last updated on March 21, 2019

Could the Supreme Court's next major civil rights case be about ... pooping? Possibly. The debate over where transgender students should be allowed to use the bathroom could soon come before the Supreme Court. Arguing that "time is of the essence," Fourth Circuit Judge Paul Niemeyer recently urged prompt appeal to the Supreme Court after the Fourth declined a petition to rehear the case en banc.

Of course, while the bathroom is the battlefield in this particular fight, the conflict implicates much more than the potty. It's about the dignity and respect to be afforded transgender youth, the continued acceptance of LGBT people in modern society, and the breadth of gender-based civil rights protections.

Taking the Fight to the Supreme Court

The rights of transgender people to use the bathroom freely became an unexpected culture war battleground this spring, after North Carolina made it a crime for anyone to use a bathroom that does not correspond to their assigned birth sex. The state is currently in the middle of a showdown with the Department of Justice as a result.

But while North Carolina made headlines, a lesser known test-case had been winding its way through the courts. That's the case of Gavin Grimm, a high school student in Virginia. A transgender teenager who was born biological female but identifies as a man, Grimm was allowed to use the boy's bathroom for a brief period. But after parents complained, the school board adopted a policy barring transgender students from the bathrooms that correspond to their gender identity. Grimm, who lives and appears as a young man, would have to use the women's restroom, or a separate, single bathroom.

The ACLU of Virginia took up Grimm's case, arguing that anti-trans discrimination was discrimination "because of sex." Title IX prohibits discrimination in education on the basis of sex and current Department of Education interpretation of Title IX demands that schools allow transgender students to use the bathroom that corresponds to their gender identity.

Grimm and the ACLU won an important victory in the Fourth Circuit, convincing the court that such an interpretation is entitled to Auer deference -- and leading to Judge Niemeyer's call for a quick appeal to the Supreme Court. In his dissent from an order denying rehearing en banc, the judge wrote that "the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court's controlling construction of Title IX for national application."

The Evolving Interpretation of Sex Discrimination

Transgender activists had attempted to convince courts that anti-trans discrimination was discrimination "because of sex" as far back as 1977, arguing that rules about hair length or bathroom use, which punished transgender people for not conforming to the gender stereotypes of their birth sex, were discrimination "because of sex," in violation of the Fourteenth Amendment and various civil rights statutes.

Those arguments failed at the time, but they have been successfully reasserted in recent years, particularly by government agencies. The EEOC recognized that such discrimination can violate the Civil Rights Act in 2012, four years before it took the same position on anti-gay discrimination, for example. In May, the Obama administration told school administrators across the country to respect the gender identities of their students, or risk violating the law.

And when the Department of Justice sued North Carolina over its bathroom law, Loretta Lynch placed transgender rights at the center of America's long struggle over civil rights, from Jim Crow to Brown v. Board of Education. To the transgender community, she declared that "no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward."

Would the Supreme Court do the same?

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