an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What's the harm in allowing transgender students to use restrooms corresponding to their gender identity?
Gavin Grimm is a 17-year-old transgender boy who is about to enter his senior year at Gloucester High School in Gloucester County, Virginia. The hospital designated Grimm as female at birth, presumably because he was born with female reproductive organs. From a very young age, however, Grimm has felt as though he is a boy, not a girl. When he became a teenager, a psychologist diagnosed Grimm with gender dysphoria--which the ACLU describes in Grimm's complaint as "a serious medical condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s assigned sex at birth." The psychologist recommended a course of treatment that included a full social gender transition. As part of that transition, Grimm legally changed his name to Gavin, changed the gender designation on his driver’s license to male, is referred to by male pronouns, uses men’s restrooms when not at school, and began hormone treatment, which has deepened his voice, increased his facial hair, and given him a more masculine appearance.
When the Gloucester County High School refused to permit Gavin to use restrooms designated for boys, he sued the School Board under Title IX of the Education Amendments of 1972, which provides that a school receiving federal financial assistance may not "subject" any person to "discrimination . . . on the basis of sex." The U.S. Court of Appeals ruled in Grimm's favor and, on June 23, the district court entered a preliminary injunction requiring the Board to allow Grimm to use the boys’ restroom.
Yesterday the Gloucester School Board filed an application with the Supreme Court, asking the Court to stay the injunction while it considers the Board's forthcoming petition for certiorari. Amy Howe has a very helpful summary of the application here.
I might address the merits of the suit more fully in a later post. (See the footnote below* for a very cursory take on what the hardest question is.) The point of this post, however, is merely to flag one important part of the Board's application to the Court--namely, its conspicuous failure to explain how the district court's injunction will harm the Board, or anyone else.
The Board states that it "urgently needs a stay of the underlying action," "in order to avoid irreparable harm to the Board, to the school system, and to the legitimate privacy expectations of the district’s schoolchildren and parents alike." The Board points to several distinct "harms" that the injunction allegedly will cause.
Most of them are obvious makeweights. For example, the first "harm" noted in the Board's application is a bald assertion that the injunction will be "a particularly devastating blow to the School Board’s authority." Why, however, is this injunction any more of a "blow" to the Board's authority than any other of the countless legal mandates to which it's bound? The Board doesn't say. The Board also alleges that the injunction "will likely cause severe disruption to the school as the upcoming school year approaches in September." But what does that "severe disruption" consist of? Nothing more than the fact that the Board might receive “numerous complaints” from those objecting to Grimm's presence in boys' restrooms. I hope it's obvious why that, too, is hardly a "harm" that would justify staying the injunction. (What's more, there might be even more complaints if the Board continued its exclusion of Grimm from boys' restrooms.)
So then we come to the nub of the matter: The Board argues that the injunction allegedly will impinge upon "children’s constitutionally guaranteed rights of bodily privacy" and "depriv[e] parents of any say over whether their children should be exposed to members of the opposite biological sex, possibly in a state of full or complete undress, in intimate settings."
Think about that for a second. The singular effect of the injunction will be to allow Gavin Grimm to use the boys' restrooms at his high school. And the harm in this is that other students in that school will expose themselves to Grimm while they are "in a state of full or complete undress"? Really?
For one thing, students virtually never expose themselves "in a state of full or complete undress" to anyone in high school restrooms--and on the rare occasions when they do, it's voluntary. Their "right" not to do so--to preserve their bodily privacy--is not implicated by the district court's injunction here any more than it is by the everyday practices at Gloucester High. (Indeed, as it happens, Gloucester High has raised the doors and walls around its restroom stalls, and even installed partitions between the urinals in the boys’ restrooms, thereby making involuntary exposure even more unlikely than it already was. Moreover, as Judge Davis noted in his separate opinion below, all Gloucester High students have the option of using three single-stall restrooms in the school.) The alleged "bodily privacy" concern might be different, or at least worth pondering, in the case of a locker room in which a school requires communal nudity (assuming public schools even do that anymore -- do they?). But the Gloucester School Board case does not raise that question--it's limited to a single student's access to a single high-school's restrooms.
Secondly, to the extent some students would, for some reason, occasionally expose themselves involuntarily -- presumably accidentally -- "in a state of full or complete undress" to other students in the Gloucester High restrooms, why would the harm to their privacy be any greater if one of those other students happens to be one who happens to have female reproductive organs but otherwise presents himself in all outward respects as male? The School Board does not say. And there's no obvious answer.
The utter absence of any harm caused by the injunction here does not necessarily mean that the Court should not agree to review the Gloucester High case (although other cases that the courts of appeals will decide in the coming months are apt to be much better "vehicles" for review, if and when a circuit-split develops); and neither does it resolve the merits question (see footnote below). It is, however, a good reason for the Court to deny the Board's application for a stay of the injunction.
* Short version: I think there's a good case to be made that Title IX, standing alone, would prohibit the school (which receives federal funds) from denying a transgender student from using the boys' restroom by virtue of his reproductive organs--a straightforward form of discrimination on the basis of "sex" that can't easily be justified. It therefore would be permissible for the Department of Education to promulgate a regulation to that effect. The harder question--and it's the principal question raised in the case before the Supreme Court--is one of administrative law, namely, whether an existingregulation creating a restroom exemption from Title IX's antidiscrimination condition ("A recipient [of federal funds] may provide 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 provided for students of the other sex") gives schools the authority to provide separate bathrooms on the basis of students' reproductive organs, without regard to students' gender identity, or whether it was proper for the Department of Education to interpret that old regulation not to permit such discrimination. That is to say: Does the Department have to promulgate a new or amended regulation, pursuant to the rulemaking procedure of the Administrative Procedure Act, or can it rest on the existing regulation? Posted
by Marty Lederman [link]