WASHINGTON — 19 state attorneys general have signed a joint legal brief backing a Virginia school district’s appeal of a ruling requiring that it allow a female student who identifies as male to use the boys’ restroom.
“The attorneys general are again stepping forward to protect children by asking the United States Supreme Court to allow school districts to avoid placing young children of opposite sex in the same bathroom or locker room,” South Dakota Attorney General Marty Jackley said in a statement this week.
The Supreme Court brief namely takes issue with the Obama administration’s recent directives to school districts nationwide, which require the accommodation of students’ “internal sense of gender” under threat of losing federal funding.
“This case is about whether federal agencies receive deference when they attempt to impose conditions on the state’s receipt of federal funds, especially when those conditions conflict with the plain text of the statute authorizing the grant and when they appear for the first time in an informal letter issued without opportunity for notice and comment,” the legal filing reads.
“To threaten the states with loss of all of their billions of dollars of federal education funding if they fail to adhere to the department’s command is, plain and simply, coercion—and this court’s federalism jurisprudence does not permit it,” it states.
The brief is led by West Virginia Attorney General Patrick Morrisey, and is joined by Attorneys General Luther Strange of Alabama; Mark Brnovich of Arizona; Mike Dewine of Ohio; Ken Paxton of Texas; Jeff Landry of Louisiana; Brad Schimel of Wisconsin; Timothy Fox of Montana and Jim Hood of Mississippi, among others.
The governors of North Carolina and Kentucky also joined in the amicus curiae brief.
As previously reported, Gavin Grimm, now 17, told reporters in December 2014 that she began using the boys’ restroom after obtaining permission from the school principal when she expressed disapproval over being forced to use the nurse restroom.
“I’m not a girl. I’m not using the girl’s restroom,” Grimm stated. “So I said, ‘Hey, where can I use the restroom?’ … And so they said, ‘Use the nurse’s room,’ and at the time I was fine with that, because I was still afraid—I didn’t know how my peers would react. So, I didn’t want to push the envelope any further than I had to all at once.”
But she said that the option soon became a problem.
“The nurse’s office is at least a three minute walk from the class I have closest to it. It took a substantial amount of time out of my class time, and it was embarrassing,” Grimm said. “When you’re gone for 15 minutes at a time to use the bathroom, what are high schoolers gonna think? It’s humiliating and it’s alienating.”
The student therefore asked the principal about the matter, who suggested that Grimm go ahead and use the men’s restroom since she identifies as a boy. But some of the parents of the male students soon learned about the allowance, and the issue turned up before the school board.
Due to the concerns of parents, the board voted to approve a policy requiring students to utilize the restroom that correlates with their biological gender, or to use a private bathroom.
But in response, Grimm sued the Gloucester County School Board with the aid of the American Civil Liberties Union (ACLU) in an effort to overturn the policy.
“By excluding Gavin—a transgender boy—from the boys restrooms because the school board does not deem him to be ‘biologically’ male, the school board, under color of state law, has treated and continues to treat Gavin differently from similarly situated students based on his gender,” the suit asserted.
Last September, District Court Judge Robert Doumar, appointed to the bench by then-President Ronald Reagan, ruled against Grimm, disagreeing with the ACLU that the board had violated Title IX with its restroom policy.
“Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation,” Doumar wrote.
The ACLU appealed the decision to the Fourth Circuit Court of Appeals, which ruled 2-1 in favor of Grimm in April by pointing to the Obama administration’s recent interpretations of the federal statute.
It then sent the case back to Doumar, who was instructed to rule in light of how the U.S. Department of Education views the federal statute. Doumar consequently ordered the board to allow Grimm to use the boys’ restroom.
The the Gloucester County School Board then appealed the order to the U.S. Supreme Court, asserting that it will cause “irreparable harm to the board, to the school system and to the legitimate privacy expectations of the district’s schoolchildren and parents alike.”
In August, the court granted the emergency injunction, blocking Grimm from using the boys’ restroom—at least for now as it decides whether or not to accept the board’s appeal.
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