NC eyes Virginia transgender case
ASHEVILLE - A federal court case brought by a transgender student, who is fighting to use boys’ restrooms in his Virginia school, could have implications for a controversial new state law in North Carolina, one that has come under scrutiny as a potential threat to federal education funding.
Should the appellate court judges rule in favor of 16-year-old Gavin Grimm, their decision could force North Carolina legislators to re-examine a law signed late Wednesday by Gov. Pat McCrory. The law, in part, requires transgender individuals use public bathrooms consistent with their physical anatomy rather than their gender identity. It also prevents local governments from adopting rules to prohibit discrimination on the basis of sexual orientation and mandates that only the state can set minimum wage rates.
Grimm has argued that a policy by the Gloucester County School Board barring him from using the boys’ bathroom violates his federal Title IX protections, which forbids discrimination in public schools based on sex.
Schools that violate Title IX risk losing federal education funding, and in North Carolina, opponents of the newly signed House Bill 2, will likely bring suit against the law on those grounds.
But state officials supporting the law say federal education funding to the state — about $4 billion — is not in jeopardy, regardless of the appellate court’s decision.
Grimm’s case was heard in January before the U.S. Court of Appeals for the Fourth Circuit, a jurisdiction that includes North Carolina.
A decision from the panel of three jurists is expected any day and, as the first such case before federal appellate judges, will likely be precedent setting, said Joshua Block, attorney with the American Civil Liberties Union, which is representing Grimm.
“What the court rules in Gavin’s case will likely be precedent for district courts in North Carolina that they will have to follow,” Block said of the parity between his case and HB 2. “It does seem odd that even though the governor and legislature presumably know a decision is going to come down from the Fourth Circuit, that they rushed in to enact this sweeping policy without seeing how the court rules. It seems like they are exposing the state to a lot of legal liability for no reason.”
McCrory and legislators are aware of the Grimm case, with the governor weighing in on it late last year through a friend of the court brief, arguing, in part, that federal Title IX protections are limited to biological sex, and do not extend to “subjective or cultural expressions of gender at odds with one’s biological sex.”
The case came before the Court of Appeals after a September ruling by a U.S. District Judge in Virginia found against Grimm. Judge Robert Doumar determined the school board, in providing sex-segregated bathrooms, did not run afoul of Title IX and denied Grimm’s motion for a preliminary injunction that would have allowed him to use the boys’ bathroom.
Grimm, a high school junior, had sued the Gloucester County School Board after its officials put in place a bathroom policy that required the transgender student use the girls' bathroom. Born a girl, Grimm at age 12 “acknowledged his male gender identity to himself” and in 2014 was diagnosed with gender dysphoria, according to court documents.
Grimm’s psychologist recommended he live as and be treated as a boy, and he legally changed his name to the more masculine Gavin. For nearly two months, the school’s principal allowed Grimm to use boys’ restrooms, until the school board instituted the policy preventing him from doing so.
In all other venues, Grimm uses men’s rooms and has a state identification that indicates he is male, Block said.
Organizations and government bodies have lined up on both sides of the issue, including McCrory and the governor of Maine, who joined with three other states in their brief to the court. The U.S. Department of Education has also weighed in, siding with Grimm, after it laid out guidelines in 2014 that specify transgender students are also protected from discrimination under Title IX.
The law is most often associated with providing girls and boys with equal opportunities in sports, though its protections extend well beyond athletics.
Rep. Dan Bishop, R-Mecklenburg, who was a primary sponsor of HB 2, said guidelines issued by federal education officials that expand Title IX to transgender students under President Barack Obama are a tyrannical expansion that subverts the law.
“I’ve not yet seen a story in the media about how the Obama administration can politically threaten to take billions of dollars from school systems across the country on an unproven, novel and radical interpretation of law inconsistent with its own regulations,” he said. “But there is certainly is no risk from HB 2.”
“The whole nation ought to be watching (the Grimm case),” Bishop said, and should the law meet a legal challenge, federal education funds funneled to North Carolina will not be in jeopardy, even if courts rule against the law on a Title IX challenge.
To imply that North Carolina will lose federal education funding, he said, is a “Chicken Little, the sky is falling” cry: Even if the law fails to hold up in court, the process is long, giving state officials time to readjust.
One outcome, he said, is that federal law or a federal court interpretation of Title IX could pre-empt — or invalidate — state law, which mean education funding would remain intact.
“This is something that takes a ton of time,” he said. “It’s not something that can happen precipitously. So even setting aside the pre-emption issue, should the federal law invalidate a state law, you could make provisions while such processes are going on. You could modify the statute so it ceases to be effective if this came out a certain way in some future session of the General Assembly."
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