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The Supreme Court’s Ongoing Battle Over Transgender Bathroom Rights

The push to expand sex-based discrimination laws just hit a snag.

By Elena Gooray


(Photo: Sara D. Davis/Getty Images)

The Supreme Court voted last week to block a lower court order allowing a transgender male teenager to use his school’s boys’ bathroom — another setback for recent expansions of sex-based discrimination laws.

The bathroom case began last year, when 16-year-old transgender student Gavin Grimm sued the school board of Gloucester County, Virginia, for banning him from the school’s boys’ restroom. A lower federal court ruled in Grimm’s favor, declaring that the board violated Title IX’s ban against sex discrimination in schools. But the Supreme Court split 5–3 to block the lower court’s decision. Casting the deciding vote, Justice Stephen Breyer wrote that he supported the block to “preserve the status quo” in Gloucester, buying the court more time to review the appeal. Meanwhile, Grimm has had to continue using the girls’ room.

Breyer’s comments leave open how the Court will rule on the case, which joins a wave of ongoing fights over gender-based legal protections. Many of those fights so far have overturned the status quo. In May, the Department of Justice (DOJ) defined “sex” as “gender” in guidelines it released to schools for avoiding sex discrimination, for the first time explicitly protecting transgender students’ rights to “a supportive and nondiscriminatory school environment.” The guidelines traced this mandate back to Title IX legislation banning sex discrimination in schools. But similar standards have been applied to the workplace, stemming chiefly from the sister legislation that is Title VII.

One 2014 case aimed Title VII at a surprising target: pressure to conform to gender norms. When a construction supervisor bullied his employee for using Wet Wipes and being, in his words, a “pussy,” a Louisiana district court struck down the behavior as sex discrimination. The case marked a touchstone for fighting gender norms through the law, as Michael R. Fitzgeraldwrote for Pacific Standard’s May/June 2015 issue:

Most Americans are at least vaguely aware that imposing explicit gender-based expectations on women in the workplace is unacceptable, even legally actionable, and states are rapidly adopting laws to protect gay and transgender employees from abuse. But what’s less well known is that decisions like the one in New Orleans also ban the imposition of gender norms on straight men.

The Louisiana decision represents a trend among courts toward erasing traditional gender norms altogether, Fitzgerald reported. That shift holds promise for concretely protecting the rights of transgender workers, who can be legally fired for their gender identity in 32 states.

But the shift has met its share of push-back — especially when it comes to bathroom laws. Officials from 11 states filed a suit against the DOJ’s school guidelines just weeks after they were issued, reflecting perceptions that “the administration has exceeded the scope of current laws defining discrimination in the United States,” the New York Times reported. And 10 more states joined that camp in July, meaning nearly half of the states oppose the guidelines. As for public opinion on bathroom laws, nationwide polls have found inconsistent results, Gallup reported in May, suggesting Americans haven’t yet reached a consensus.

The Supreme Court’s decision last week is a move to proceed with more caution in a political climate demanding just that. The DOJ’s stance and watershed court cases have created the firmest grounds we’ve had yet for expanding sex-based protections to transgender rights, and to everyday behaviors (like using Wet Wipes while male). But those grounds — and the rights of people like Grimm — remain in limbo.