Justice Department: Schools Must Let Students Use Whatever Bathroom They Wish

The Washington Examiner

The Department of Justice argued in a brief to a federal court on Monday that transgender high school students should be able to use school restrooms that match up with their gender identity, and can’t be forced by the school to use the restroom that matches up with their physical characteristics.

It’s the first time the federal government has tried to make the case for this transgender right in a courtroom.

Justice’s Civil Rights Division filed the brief on behalf of Gavin Grimm, a Virginia high school student who identifies as a boy, even though Grimm was born female.

“He was assigned the female sex at birth, but his gender identity is male and he presents as a boy in all aspects of his life,” Justice wrote in its argument to the U.S. District Court for the Eastern District of Virginia.

Grimm was allowed to use the boys’ restroom for seven weeks, until Gloucester County Public Schools imposed a policy that barred Grimm from the boys’ room. The school made that policy because Grimm is not “biologically male.”

But Justice said Title IX of the Education Amendments, a law aimed at ending sexual discrimination, holds that the school’s policy change is illegal.

“Under Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex,” Justice wrote. “As such, prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX.”

As part of its brief, Justice included a letter that its Office of Civil Rights wrote in January clarifying how it will be applying Title IX to these sorts of cases.

“The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances,” the January letter said.

“When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity,” it added. “OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.”

The National Center for Lesbian Rights praised the department’s briefing, and said forcing transgender students to use restrooms that are opposite their gender identity “exposes them to relentless harassment and abuse from peers.” 

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