I’ve said it before, and I’ll say it again: Bills like North Carolina’s “bathroom bill” aren’t long for this world. But that doesn’t mean they won’t put up a fight while they’re here.
The latest notch in this story comes from the Fourth Circuit, who overturned a lower court’s decision and ruled in favor of a transgender student. It promises to reverberate around its jurisdiction—and beyond, since it’s just a drop in the bucket of courts and federal agencies enacting protections for transgender folks—but it’s also a glance at how hard the next fight in the LGBTQ equality will be.
G.G. v. Gloucester County School Board, the Fourth Circuit decision in question, involved a young transgender man, G.G., enrolled in a Virginia high school. When he and his mother informed the school that he was transgender, the school was supportive; ensuring he was treated as a male and allowed to use the boy’s restroom. But when the school board subsequently passed a resolution that school bathroom and locker rooms should be limited to use “on the basis of sex.” After much discussion of whether G.G. could use the men’s room, the board announced that they would be updating and improving the general privacy for all student bathrooms, and would be constructing single-stall, unisex restrooms available to all students. G.G., however, argued that a different bathroom would make him even more stigmatized amongst his peers, and filed a suit against the district on the grounds that their actions violated his Title IX rights.
The issue before the courts has been where to put the “basis of sex.” The district argues that the “basis of sex” should be interpreted as a student’s biological sex, while the student has maintained that it should be a student’s gender identity. The federal district dismissed the claim, given that “biologically” the student’s sex was female. But the Fourth Circuit felt differently.
They sided with the Office of Civil Rights (OCR) which, along with other federal agencies, have been using Title IX to protect transgender students across the country. The court remanded the case back down, to reconsider giving OCR’s interpretation of Title IX rights deference.
It’s a big decision, and as Peter Maher writes for School Law, it’s bigger than just one Virginian teen:
This case is particularly interesting because, although the case arose in Virginia, the Fourth Circuit’s jurisdiction includes North Carolina, which recently enacted state legislation, known as HB2, that, among other things, requires school districts in that state to designate any multiple-occupancy restrooms to be used only by students based on their biological sex. While school districts in North Carolina will have to grapple with the conflict between the Gloucester case and HB2, public schools and higher educational institutions in Connecticut and elsewhere should be aware of OCR’s guidance on transgender students’ access to facilities and how courts are interpreting Title IX as it relates to these issues.
Which means North Carolina’s bill—which is already under fire from all sides—is in trouble. At this point the doldrum of most critics and their backlash has made it clear that the state is probably going to have to walk back its bill. And now that the Fourth Circuit has staked out their stance on trans rights, the end of the road seems even clearer.
The problem is, bills like this are popping up everywhere. In what some believe to be a reaction to Obergefell, as well as the fact that trans visibility has never been higher, as many as 175 anti-LGBTQ bills have been enacted in 32 states so far in 2016. Whether in the name of “religious liberty” or “protecting public safety,” LGBTQ individuals are experiencing a backlash of bills that undermine their employment, consumer, and bathroom opportunities.
And the boogeyman is not longer one big thing. The federal government and higher appeals courts have been kind more often than not to LGBTQ rights. Local jurisdictions are where the battle lies now. Whether it’s sports teams or marriage certificates, activists and LGBTQ allies are primarily facing opposition and lack of support from regional administrative offices—which is basically what people were worried about after the Obergefell decision, as Sam Schwartz-Fenwick, Kylie Byron and Amanda Sonneborn wrote on the ERISA & Employee Benefits Litigation Blog when SCOTUS granted a certiorari:
A ruling striking down marriage bans would also create a unique situation: all states would be required to permit same-sex marriage, but employers in the majority of states could still fire an employee for being gay or for being in a same-sex marriage. Employees, emboldened by a ruling that legalizes same-sex marriage and frustrated by a Congress that has not expressly outlawed LGBT discrimination, are likely to increasingly use the Court to argue that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII. The EEOC and the Obama administration already take this position.
So long as those in higher courts and federal agencies (not to mention big employers and major corporations) view this as clear discrimination, LGBTQ folks can breathe a little easier that these laws may not govern them for long. But in the meantime it’s going to take time and money. The LGBTQ strategy was notoriously well-armed in the fight for marriage equality. With any luck, they can keep it up.