Septemebr 5, 2016
The Supreme Court could decide in its next term what bathrooms transgender students can use in schools.
At least five cases related to the joint guidance the Education Department and the Department of Justice released in May on bathroom use are making their way through the courts, with one case out of Virginia already before the high court.
Septemebr 5, 2016
The Supreme Court could decide in its next term what bathrooms transgender students can use in schools.
At least five cases related to the joint guidance the Education Department and the Department of Justice released in May on bathroom use are making their way through the courts, with one case out of Virginia already before the high court.
With legal battles raging, it appears increasingly likely that the justices will have to decide whether state and local schools boards can require students to use bathrooms that match their gender at birth.
"We think this is a pressing issue that the sooner we can get clarification – preferably that the federal government has no authority to dictate what local schools do – the better," said Matt Sharp, legal counsel for the Alliance Defending Freedom (ADF), a conservative Christian nonprofit organization.
The guidance from the Obama administration directs all public school districts to allow transgender students to use the bathroom that matches their gender identity. Schools that refuse risk losing federal funding.
Under anti-discrimination laws, federal officials said, sex includes a student's gender identity.
In Ohio, Sharp said the Education Department threatened to pull millions of dollars from a local school district unless the guidance was followed. That money was being used to pay for special needs programs and offer students free and reduced lunches.
ADF attorneys representing the Highland Local School District's Board of Education have asked the Southern District of Ohio Court to temporarily block the agency from being able to follow through on the threat.
"These are children with special education needs and they are the ones being held hostage by the administration if the school doesn't capitulate," Sharp said.
One school in Illinois that changed its bathroom policy after the federal guidance is being sued by 130 students and parents for letting a boy who identifies as a girl use the girls' locker room. As a result, Sharp said girls are wearing their gym clothes under their street clothes to school.
"A lot of people are concerned about privacy and the unintended consequences of this," he said.
LGBTQ rights advocates defend the federal guidance and say people fear what they don't understand.
"If you haven't met a transgender person before it's understandable to have a misunderstanding and lack of information," said Kasey Suffredini, chief program officer and director of Freedom For All Americans' Transgender Freedom Project.
Suffredini, a transgendered man, recalled a time when people were afraid of sharing a bathroom with a gay person. Changing attitudes takes time, he said.
In the meantime, LGBTQ advocates plan to keep fighting for equal protection from non-discrimination in all aspects of life. While school bathrooms are only one part of that battle, a ruling in their favor from the Supreme Court would bolster their cause.
"Certainly there's a decent chance the court will take up this question and we're hopeful we'll win. … Imagine doing a job and not being able to use the bathroom or running errands. It makes it impossible for transgender people to lead their lives, which might be what opponents want," Suffredini said.
Others say the real issue with the guidance is executive overreach, not equal rights.
"These cases are not about the end result of whether there will be transgender rights, it's about whether the administration can rewrite a federal law," said Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, a conservative think tank. "There's nothing that stops Congress from amending these laws and that's the way to do it."
Suffredini sees the case differently.
"Make no mistake, these fights in court, in state legislatures, at the ballot box, are about who we want to be as a county and whether we want to treat people fairly and inclusively," he said.
"The opponents of LGBTQ equity have shown historically through the marriage equality fight that they come out on the side of exclusion and discrimination and they will do everything they possible be can to keep LGBTQ people from being their authentic selves."
The Supreme Court is likely to decide this fall whether to take up the Virginia case challenging a fourth circuit ruling that allowed a transgender student to use the boys' bathroom.
Justice Stephen Breyer's decision earlier this summer to side with the court's conservatives members in issuing an order to temporary stay the lower court ruling could signal he'd vote against the administration.
But court watchers say how the case will play out is anyone's guess.
"I think I've learned not to try to read the tea leaves and guess what the Supreme Court will do," said Joshua Block, senior staff attorney for the American Civil Liberties Union LGBT & HIV Project.
ACLU is representing Gavin Grimm, the transgender student in the Virginia case.
Courtesy: The HILL
