Federal judge says transgender bathroom ban is like racist 'separate but equal' policy

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Gavin Grimm's case is back in the spotlight.

A federal judge this week criticized a Virginia school board policy barring transgender students from using the bathroom that corresponds with their gender, comparing it to the racist "separate but equal" segregation policies of the Jim Crow era.

The American Civil Liberties Union and the ACLU of Virginia appeared in a videoconference before the Fourth Circuit Court of Appeals on Tuesday to argue that Gavin Grimm, a transgender man and former student at Gloucester High School, had his constitutional rights violated when the school denied him the ability to use the boys bathroom in 2015.

Grimm has since graduated from the high school but the school board's policies on transgender people have continued to affect him because the board won't give him a transcript that matches his birth certificate's gender marker, which is male.

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In May 2016, the Obama administration issued guidance detailing how federal laws already protected the rights of transgender students to use the bathroom corresponding with their gender identity. However, the Trump administration later reversed that guidance in February 2017.

Now, in light of the Trump era reversal, the Gloucester County School Board is appealing an August 2019 district court ruling that said the policy discriminates on the basis of sex.

Judge James A. Wynn, one of three judges on the panel overseeing that appeal, was having none of the board's arguments this week.

In a court hearing on Tuesday, Wynn compared the school policy to the the "separate but equal" policies first adopted in the late 1800's to segregate black and white establishments.

The 1896 U.S. Supreme Court decision Plessy v. Ferguson established "separate but equal" facilities for education, housing, and more. In 1954, the Court overturned that decision, ruling in Brown v. Board of Education that "separate educational facilities" were in fact "inherently unequal" and violated the Equal Protection Clause of the Constitution's 14th Amendment.

"So you have established a class of individuals ... I guess it's what you'd call a 'separate but equal' bathroom right?" Wynn asked one of the lawyers representing the school board this week.

The lawyer responded by arguing that separating transgender students into their own bathrooms did not constitute "separate but equal" facilities because they were available to everyone, including for "modesty."

Wynn noted that "no one is going to that restroom but Grimm."

"That's like saying a black school is open to anybody for anybody to go to but you never have had a white student go to one of those schools — go into 'separate but equal' schools," he said.

He added, "I went to two of those schools. I know what I'm talking about."

Joshua Block, a senior staff attorney for the ACLU's LGBT and HIV Project, also argued during Tuesday's hearing that the bathroom policy, which did not allow Grimm to access the boys restroom, was not only separate but also unequal for two reasons.

First, Block said, barring Grimm from using the boys bathroom was stigmatizing and humiliating. Second, the single stall bathroom Grimm was allowed to use was "inadequate and difficult to access."

The single stall bathroom was reportedly far from Grimm's classrooms. Grimm said previously that he suffered a urinary tract infection due to his inability to use the boys bathroom.

One of the other judges overseeing the case, Judge Paul V. Niemeyer, suggested this week that protecting transgender people against sex-based discrimination was Congress' responsibility and not the court's.

"Now we have this transgender situation and I'm wondering how we conduct the analysis. ...Isn't this better for Congress to handle?" he asked.

The House in fact passed the Equality Act in 2019, which would explicitly offer these nondiscrimination protections to transgender people, as well as lesbian, gay, and bisexual people, but the Senate has not taken up the legislation and Donald Trump has opposed the bill.

As Block noted on Tuesday, the U.S. Supreme Court will soon decide whether LGBTQ workers are protected by Title VII of the Civil Rights Act of 1964, which may shed light on Grimm's case and others like it.

Published with permission of The American Independent Foundation.