Less than a month after North Carolina lawmakers mandated that transgender people use bathrooms in public schools and government buildings that correspond to the gender on their birth certificates, a federal appeals court has ruled that such restrictions are discriminatory.
The 4th U.S. Circuit Court of Appeals ruling Tuesday in the case of a Virginia transgender teen clarifies how the court is likely to view questions about North Carolina’s widely watched new law, commonly called House Bill 2.
Amid protests, boycotts and heated debate about transgender people and the bathrooms they use, the 4th Circuit judges split 2-1 on whether 16-year-old Gavin Grimm, a high school student in rural Virginia, has the right to use the restroom designated for the gender with which he identifies.
Grimm, who has been diagnosed with gender dysphoria, challenged a Gloucester County school board decision that bans him from using the boys’ bathrooms and locker rooms.
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Not only has Grimm’s case been watched closely by transgender-rights activists and public schools throughout the country, critics and advocates of North Carolina’s beleaguered HB2 have looked to it as a bellwether for what might happen to a lawsuit filed several weeks ago in this state.
“To the extent the North Carolina law is similar to the issues in this case, I think the core legal question has been answered,” said Carl Tobias, a University of Richmond law professor. “In a way, it’s analogous to what happened to the same-sex marriage case.”
The 4th Circuit court is an appellate court that hears cases from five states, including North Carolina. Last year, a panel of the court that included two of the three judges in the Grimm case struck down a Virginia ban on marriage between same-sex couples, and that decision quickly nullified North Carolina’s constitutional amendment that defined marriage as a union between a man and a woman.
Tobias said he would expect challengers of HB2 to take the Grimm ruling to a North Carolina federal judge and argue that it answers the core legal question.
By overturning a lower court decision in the Virginia case, the appellate panel found that Title IX, the federal law that prohibits gender discrimination and harassment in schools, protects the rights of students to use the bathroom that corresponds with their gender identity. Critics say North Carolina’s law could place in jeopardy about $4 billion in federal funds for education, housing and transportation if the state is found in violation of Title IX.
Judge Henry Floyd, writing for the majority, highlighted a federal Department of Education Office of Civil Rights opinion letter dated Jan. 7, 2015. In it, federal officials said it was OK for schools to have “separate toilet, locker room, and shower facilities on the basis of sex” as long as the facilities provided for one gender were comparable to what was provided to the other. “When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.”
Floyd, in the majority opinion, wrote: “The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”
Judge Andre M. Davis, an Obama appointee with senior status on the bench, joined Floyd in the Grimm decision Tuesday. Judge Paul V. Niemeyer, a George H.W. Bush appointee, dissented.
Sarah Warbelow, legal director of the Human Rights Campaign, celebrated the court’s ruling.
“Today’s historic decision is not only a victory for Gavin, but for all transgender young people who are being targeted by discriminatory actions – including North Carolina Governor Pat McCrory’s anti-transgender HB2 law,” Warbelow wrote in a statement.
“This ruling not only gives appropriate deference to the Department of Education’s interpretation of Title IX as allowing transgender students to use school restrooms consistent with their gender identity, it also is binding on the state of North Carolina. We therefore expect public schools, including those in North Carolina, to immediately comply, ensuring transgender students full protections under the law, which includes full access to the appropriate facilities.”
Grimm was born female but identifies as male. Though he was allowed to use the boys’ restrooms at his high school in Gloucester County for several weeks in 2014, the school board, after parents complained, adopted a policy that required students to use the restroom that corresponds with their biological gender or a private, single-stall restroom.
Much like North Carolina politicians defending HB2, school officials in Virginia said the policy respected the privacy of all students.
“Today’s ruling makes plain that North Carolina’s House Bill 2 violates Title IX by discriminating against transgender students and forcing them to use the wrong restroom at school,” the ACLU of North Carolina and gay rights group Lambda Legal said in a statement. “This mean-spirited law not only encourages discrimination and endangers transgender students – it puts at risk billions of dollars in federal funds that North Carolina receives for secondary and post-secondary schools.”
McCrory signed HB2 into law after a $42,000 emergency legislative session called to nullify a Charlotte ordinance that would have given transgender residents the option of using restrooms in places of public accommodation that corresponded with their gender identity.
The stroke of his pen unleashed a flurry of boycotts, protests and a growing list of business executives, companies and university leaders standing up against the legislation.
The ruling Tuesday prompted a rush of responses from state leaders, advocacy organizations and national political organizations.
North Carolina Senate leader Phil Berger, a Republican from Rockingham County, issued a statement in the afternoon. He highlighted words Niemeyer, the dissenting judge in the 4th Circuit ruling, who described the federal Education Department’s interpretation of Title IX as trampling on “all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”
“This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect,” Niemeyer wrote in his dissent. “More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.”
Berger said in a statement: “People need to wake up: Roy Cooper, Barack Obama and two unelected federal judges are on the verge of completing their radical social re-engineering of our society by forcing middle school-aged girls to share school locker rooms with boys. House Bill 2 was our effort to stop this insanity, and I hope this proves the bathroom safety bill has nothing to do with discrimination and everything to do with protecting women’s privacy and keeping men out of girls’ bathrooms.”
McCrory had filed a so-called “friend of the court” brief in support of the bathroom ban in Virginia, and on Tuesday he turned his criticism toward high-ranking Democrats.
“I strongly disagree with both President Obama and Attorney General Roy Cooper’s objective to force our high schools to allow boys in girls’ restrooms, locker rooms or shower facilities,” McCrory said in a statement. “I think that’s bad precedent, and I don’t think it’s the traditional way we do things.
“The way I think we should have done it is to allow the high schools to make the appropriate arrangements for those students who have unique circumstances. But this is the federal government, very similar to the Charlotte government, forcing brand new standards, that we’ve never seen before.”
Though McCrory has, in the backlash against HB2, talked about pushing for tweaks to the law, legislative leaders have shown little interest in making changes.
On Tuesday, after a meeting with his education Cabinet in Raleigh and before issuing his statement, McCrory met with reporters and answered a few questions about the 4th Circuit ruling.
The governor said he disagreed with the ruling but would respect it. Its impact on legislation and policy needs to be evaluated, he said. “This is a major, major change in social norms,” McCrory said.
Mara Keisling, executive director of the National Center for Transgender Equality, praised the ruling and urged North Carolina lawmakers to repeal HB2 in light of it.
“North Carolina is part of the Fourth Circuit, which issued today’s ruling, and must follow the court’s decision,” Keisling said. “While many people are still learning who transgender students are and how to treat transgender students fairly, the court has rightly recognized that treating all students with dignity, including regarding restroom access, is the right thing to do – it costs nothing and harms no one. On the other hand, as recent weeks have shown, discrimination is harmful, costly, and illegal.”
Staff writer Lynn Bonner contributed to this report.