December 9, 2019

TRANSGENDER BATHROOM CASE: Are federally funded schools required to allow transgender students to use the bathrooms, locker rooms and showers that match their gender identity? Or does the law permit the schools flexibility in dealing with transgender cases?

A few years ago that question made it up to the Supreme Court in Gloucester County School Board v. G.G. While the case was pending, however, the Trump Administration withdrew the Obama-Era policy that took the position that schools must assign anatomical boys who identify as girls to the girls’ facilities (and vice versa). In view of that change, the case was sent back down for further consideration. Recently, the District Court again held for the student G.G.   The case is now once again on appeal to the U.S. Court of Appeals for the Fourth Circuit.

Peter Kirsanow (my colleague on the U.S. Commission on Civil Rights) and I filed an amicus curiae brief in our private capacities when the case was in the Supreme Court. If it gets to the Supreme Court again, we hope to file that brief again (with small modifications in view of the changed circumstances of the case). But in case you’re dying to know, here’s our conclusion: There is nothing in the law that requires schools to follow one practice or another. They have discretion.

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