Grimm’s case began in 2014, when he was instructed to stop using the boys’ restroom at Gloucester High School after complaints made by parents at the school. Previously, he had been guided by the school to use boys’ bathrooms, but the school board changed its policy in late 2014.
Two days after the Grimm ruling, a federal judge in the 3rd Circuit Court of Appeals ruled again in favor of greater transgender rights of students. The written decision for the case, Doe v. Boyertown, has not yet been released.
These represent two of at least five cases making their way through the court system, three heard in court last week, involving transgender people’s use of sex-segregated facilities.
Both Boyertown and Dallas (Oregon, not Texas) were cases brought against school districts with policies allowing transgender students to use bathrooms that correspond with their gender identities. In both cases, the plaintiffs were non-transgender students and their parents who alleged that the districts’ policies infringed on their right to privacy in bathrooms and locker rooms.
The school districts had implemented policies to comply with Title IX guidance from the Obama administration, which instructed schools to allow transgender students to use bathrooms aligned with their gender identity, if not that did not correlate with their assigned sex at birth. The Trump administration withdrew that guidance in February 2017.
In Boyertown, the students suing the district lost their case in district court, and appealed. Yesterday’s ruling from the 3rd circuit was again against the plaintiffs and in favor of the school district, which means unless there’s another appeal, the policies will remain.
In an email to the PBS NewsHour, student Alexis Lightcap, a plaintiff in the case, said, “Today’s ruling was very disappointing, and made me feel — again — like my voice was not heard. Every student’s privacy should be protected.”
The case in Dallas is virtually identical to Boyertown: non-transgender students and their parents are suing the school district for what they say is their right to privacy in sensitive facilities. The ruling for that could come any time.
The ACLU intervened to defend the policy in Boyertown, said staff attorney Chase Strangio. He said the ruling today is part of a larger pattern of the judicial system agreeing with transgender people. He said the question in Boyertown and Dallas is whether non-transgender students have a privacy interest to not share spaces with transgender people. “And now the 3rd circuit has rejected it,” he said.
But in Montana, the issue is slightly different; it’s more akin to North Carolina’s HB2, which received national attention (and which may have helped flip the governor’s seat from Republican to Democrat).
The Montana Family Foundation is petitioning to get an initiative on the ballot in November, which would bar people from using bathrooms and other facilities which do not correspond with their sex. Initiative 183’s language defines “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth,” although the science on sex is not black and white.
The ACLU filed a suit against the proposed initiative. Right now, the parties are waiting to see if the judge will dismiss the suit, as the state moved that it be dismissed, since it lacks the necessary signatures. But the ACLU’s suit isn’t just litigation strategy, Strangio said. It’s also advocacy to stop the signatures from being gathered by the deadline, which is at the end of June.
As of July of last year, the National Council of State Legislatures, which tracks so-called “bathroom bills,” said 16 states have “considered legislation that would restrict access to multi-user restrooms, locker rooms, and other sex-segregated facilities” by sex. Fourteen states have considered similar legislation in schools.