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SCOTUS Sends Transgender School Case Back To 4th Circuit

By Michael A. Kornbluth

On March 6, 2017, the Supreme Court remanded a case about a transgender boy’s right to use the bathroom associated with his gender identity. Gavin Grimm, a transgender boy, wanted to use the boys’ restroom at his high school. After Gavin had been using the boys’ restroom for seven weeks with the school’s permission, the local school board passed a policy that banned Gavin Grimm from using the boys’ restroom. Gavin Grimm filed for an injunction to use the bathroom based on his gender identity.

The U.S. District Court for the Eastern District of Virginia, 122 F. Supp. 3d 736 (2015), dismissed Grimm’s Title IX claim. On appeal, the primary issue for the 4th Circuit was whether Title IX requires schools to provide transgender students restroom access that comports with the student’s gender identity as stated in 34 CFR 106.33. G.G. v. Gloucester County School Board, 822 F.3d 719 (2016).   The regulation permits the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” On Jan. 7, 2015, the Department of Education’s Office for Civil Rights interpreted 34 C.F.R. 106.33 as requiring that if a school treats students differently due to their sex, the school must also treat transgender students consistent with their identity.

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