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Transgender School Bathroom Rules Challenged In Higher Courts

by | Nov 2, 2016 | Uncategorized


On March 23, 2016 North Carolina passed a law which essentially requires that
transgendered or other individuals must use public restroom facilities only as per
their birth certificate gender. It is titled, “Public Facilities Privacy and Security
Act.” It overrides any N.C. local or town ordinance that deals with public facilities
or institutions.

A number of civil rights and advocacy groups (including the ACLU), as well as
dozens of school administrators, filed suit in United States District Court to
challenge the law on constitutional grounds. Namely, violations of Title IX and the
Equal Protection/Due Process clauses of the 14 th Amendment. Basically, they
claimed that the law was designed to discriminate against transgender people
and to encourage marginalization and bullying of them. The District Court issued
an injunction under Title IX that stopped public schools that receive federal funds
from enforcing the controversial law.

But that court denied the 14 th Amendment claim because transgender people are
supposedly only a small minority of the population. The court – faced with the
novel question of applying the 14 th Amendment to transgender persons using
public facilities – limited itself to applying a “rational basis” standard. So long as
the State (N.C.) can show some rational reason for the law, it will be upheld and
in this case it was.
The ACLU and others quickly filed an appeal on October 27, appealing the 14 th
Amendment decision of the lower court. Other school and advocacy groups
weighed in, claiming that the bill does nothing more than specifically target and
stigmatize transgender persons, leading to negative outcomes. Many legal points
and statistical information were given to the Court that said that the law
encourages bullying and intimidation as a fully transitioned person would have to
use the bathroom of the opposite of their identified gender. For example, a male
to female individual would have to use a male restroom.

It remains uncertain how the appeals court there will approach this in the 14 th
Amendment context, since it is a brand new question. If those protections are
extended, the law will be struck down completely with respect to all public

Just last Friday, the U.S. Supreme Court said it will decide whether the Obama
administration can require public school systems to let transgender students use
bathrooms that align with their gender identity. The Court accepted a request
from the School Board of Gloucester County, Va., to overturn a lower court’s
order that 17-year- old Gavin Grimm, who was born female but identifies as male,
be allowed to use the boys’ restroom during his senior year of high school. Evan
Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a
scheduled graduation date in 2017. He collaborated with me on this blog. 

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