Washington leads multi-state effort in Fourth Circuit Court of Appeals
Attorney General Bob Ferguson is leading a coalition of 17 states and the District of Columbia in urging the United States Court of Appeals for the Fourth Circuit to uphold the right of a transgender student in Virginia to use the school bathroom corresponding to his gender identity.
“Policies barring transgender individuals from using the appropriate facilities for their gender are based in fear and violate the civil rights of our transgender community members,” Ferguson said.
The states, co-led by Ferguson and New York Attorney General Eric Schneiderman, filed an amicus, or “friend of the court,” brief in Gloucester County School Board v. G.G.
Gavin Grimm, a transgender high school student, filed a lawsuit after his school board changed district policy in reaction to some parents’ complaints, barring him from using the boys’ restroom. A federal district court dismissed his claim, but the Fourth Circuit Court of Appeals reversed that ruling and ordered the district court to continue hearing the case. Grimm brought his suit under Title IX of the Civil Rights Act, which prohibits discrimination based on sex.
The United States Supreme Court agreed to hear the case, which was set for argument in March. Ferguson and Schneiderman led a coalition of 18 states and the District of Columbia in filing an amicus brief in the Supreme Court, asking the Court to uphold the right of transgender students to use school bathrooms corresponding to their gender identity. After the Trump Administration withdrew guidance that had been prepared to assist schools in avoiding discrimination against transgender students, the Court canceled the oral argument and sent the case back to the Fourth Circuit to reconsider in the absence of that guidance.
In his amicus brief just filed in the Fourth Circuit, Ferguson argues that in addition to constituting sex-based discrimination under Title IX, discrimination against transgender people harms states, poses serious public health risks and causes enormous harm to transgender people.
“Discrimination against transgender people has no legitimate basis and serves only to injure a group that is feared for being different,” the states’ brief asserts. “It harms transgender people at work, at school, and in other settings, causing tangible economic, emotional, and health consequences.”
Transgender individuals face pervasive discrimination in school, violence, and harassment that are much higher than non-transgender students.
In the 2015 National Transgender Discrimination Survey, 77 percent of respondents who were known or perceived as transgender in grades K-12 reported experiencing harassment by students, teachers or staff. More than half of transgender students (54 percent) reported verbal harassment, and more than a third reported physical attack (24 percent) or sexual assault (13 percent).
A November 2016 report by the Federal Bureau of Investigation showed a sharp increase in hate crimes against transgender people. And since late 2016, at least nine transgender people, have been murdered in the United States.
Transgender individuals attempt suicide at a rate nine times that of the general population. A recent study found that transgender people denied access to bathroom facilities were nearly 20 percent more likely to attempt suicide than transgender people who had not.
The states’ amicus brief argues that there are proven, cost-effective ways to maximize privacy for users of school restrooms and other facilities without discriminating.
For example, Washington’s Office of the Superintendent of Public Instruction offers this guidance: School districts are to allow students to use the restroom that is “consistent with their gender identity consistently asserted at school,” and “any student — transgender or not — who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom).” In this way, “students who may feel uncomfortable sharing the facility with the transgender student(s) [have] the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.”
Twenty states, including Washington, offer explicit civil rights protections for transgender individuals. The Washington Law Against Discrimination and the Equal Educational Opportunity Law provide important protections for transgender and gender non-conforming students.
Deputy Solicitor General Alan Copsey was the lead author of the brief for Washington.
Oral argument in the case has not been set.