Monday, June 6, 2016

Battle of the Bathrooms---An Update on the Transgender Bathroom Fight

The battle over whether student privacy rights trump a transgender student's right to use the bathroom that corresponds to the sex with which he or she identifies continues, and two new developments move the issue closer to a possible review by the Supreme Court.
 
First, at the end of May, and on behalf of the State of Texas, Texas Attorney General Ken Paxton filed a lawsuit against the Obama Administration challenging the Administration's directive to allow transgender students to use the bathroom that matches their gender identity.  Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin joined in the lawsuit.  The suit is pending in the Northern District of Texas, Wichita Falls Division.  All of the plaintiffs seeks declaratory and injunctive relief.
 
Second, last week, the Fourth Circuit denied a rehearing request in Grimm v. Gloucester County School Board, No. 4:15-cv54, in the United States District Court, Eastern District of Virginia, Newport News Division.  In Grimm, a three judge panel previously ruled that prohibiting a transgender student from using the boys' bathroom violated Title IX of the Education Code.  Based on the rehearing denial, the prior decision remains in place.
 
Opponents of the Administration's directive have repeatedly urged that the directive leaves girls vulnerable to male predators in female restrooms.  Interestingly, in the Grimm case, Grimm was born a female but identifies as a male, and sued to use the boys' bathroom.  Little if anything has been said by opponents about the potential for female predators in male bathrooms.