Is the men’s room unconstitutional? According to U.S. District Court Judge Arenda L. Wright Allen, it is.
In a decision handed down Friday, she ruled that the Gloucester County School Board’s policy segregating school bathrooms by “biological gender” violated both Title IX of the Civil Rights Act and the 14th Amendment of the Constitution.
The case is messy and complicated, and the decision reveals the myriad ways in which judicial overreach and wide-sweeping laws strip communities of their power to handle complex situations.
The case involves a former student named Gavin Grimm, a transgender man (born biologically female) who previously attended Gloucester High School. Grimm came out as transgender to his family, who then sought accommodations from the school. Administrators agreed to allow Grimm to go by the chosen male name of Gavin and to use male pronouns. They also provided a separate unisex private bathroom for his use.
This wasn’t good enough for the Grimms.
Grimm’s family requested that he be allowed to use the men’s bathrooms. At first, the request was granted. But about seven weeks later, the school began to receive complaints. Thus, the school board voted to adopt a policy that “the use of [bathroom] facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”
After a complicated legal path and long after Grimm’s graduation, the case, Grimm v. Gloucester County School Board, finally came before Judge Allen.
The judge ruled in Grimm’s favor and struck down the school board’s policy, finding that there is “no question” the policy was discriminatory. She wrote that transgender “students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.” The judge said this was all for naught, as “the fact that Mr. Grimm used male restrooms for seven weeks without incident is evidence suggesting that the Board’s privacy concerns are unwarranted.”
On that score, Judge Allen’s ruling appears reasonable enough. The state of Virginia had recognized Grimm’s gender transition, even issuing him a new state ID and “male” birth certificate. Thus, the school seems to have no right to continue refusing to update his transcript to say male instead of female, as it has done.
And the school policy of separating bathrooms based on “biological gender” does indeed treat students differently — another way of saying “discriminate” —along the lines of sex. This is explicitly in contradiction to Title IX, which says no student can be denied “on the basis of sex” participation in any education program. As Judge Allen notes, “under the policy, all students except for transgender students may use restrooms corresponding with their gender identity.” The reason they may not use their preferred restroom is their biological sex, an apparent violation of Title IX.
But the judge’s reasoning would also seem to imply that any sex-based school segregation is unlawful. Is that really something we’re prepared to accept?
All separation of the sexes, even in obviously necessary situations like elementary school bathrooms or high school locker rooms, involves disparate treatment on the basis of sex. If any student can prove he or she suffered some harm as a result, this would appear to give rise to a serious legal claim that would put the policy in legal jeopardy. That’s the precedent set by Judge Allen’s ruling. There’s something deeply off-putting about a federal judge being able to set such a precedent on a localized issue as school bathroom rules, to be potentially applied across the country. Aren’t issues like this best handled by those most closely involved?
Deference to the wisdom of local educators and elected officials makes more sense than a one-size-fit-all national approach declared from the bench and supposedly backed up by constitutional necessity. That seems like a much more reasonable way to ensure there are appropriate accommodations for students like Grimm without eradicating all social norms regarding sex separation in education.
After all, by granting Grimm access to a private, gender-neutral bathroom, Gloucester High administrators had already found a workable situation that avoided potential disorder, complaining and bullying among students. If this case tells us one thing, it’s that some issues are much better decided at the local level on a case-by-case basis than by national judicial decree.
