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Court Sides With Transgender Student, Ed. Dept. Over School Restroom Access

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29-Transgender-Gavin-Grimm-blog.jpgIn a decision that could have far-reaching implications for schools around the country, a federal appeals court has sided with a transgender student who sued his school after it prohibited him from using the boys' restroom because he was born a girl.

A district court judge in Virginia erred when it did not defer to the U.S. Department of Education's interpretation that Title IX applies to gender identity as well as biological sex, the U.S. Court of Appeals for the Fourth Circuit said in a 2-1 decision Tuesday. 

The Fourth Circuit panel sent the original case back to the lower court to reconsider its denial of a preliminary injunction that would allow Gavin Grimm, a high school student in Gloucester County, Va., to use the boy's restroom.

The fourth circuit notably includes North Carolina, which recently became the first state in the country to require public schools to restrict restroom access for transgender students. Gov. Pat McCory said he is studying the ruling, which could leave his state's schools with the difficult decision between violating a new state statute or violating Title IX at the risk of losing millions of dollars of federal funding.

The ruling cited precedents which said that, in cases where there is ambiguity in interpretation of a federal laws, courts should give deference to an agency's interpretation of those laws.

"Although [Title IX] may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms," the ruling says. "We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board's reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department's interpretation—determining maleness or femaleness with reference to gender identity."

The Obama administration has long argued that the federal civil rights law applies to gender identity, but many state and local policymakers have disagreed with that interpretation. In November, the department's office for civil rights found an Illinois district in violation of the law because it would not grant a transgender girl unrestricted access to the girls' locker room. Under threat of penalties, including a possible loss of federal funding, the district hung privacy curtains in the locker room and agreed to allow the student to use it.

School law experts have waited for a federal court ruling on the issue to provide greater legal clarity.

The ruling may come into play in the ongoing controversy over state bills that restrict restroom access for transgender students. North Carolina is the only state to have such a measure become law, though many others have considered them. South Dakota's governor vetoed a similar measure earlier this year, and Tennessee lawmakers delayed a school facilities bill there after the state's attorney general said the proposed legislation may put its schools at risk of violating federal law and, consequently, losing millions of dollars in federal funding.

In an amicus brief filed in Grimm's case in December, leaders of six states, including North Carolina, argued against the Obama administration's interpretation of Title IX and said the school district has offered an adequate accommodation by giving Grimm access to a single-stall restroom.

"G.G. was born a baby girl. G.G. has two X chromosomes, not an X and a Y chromosome," the brief said "It is also undisputed that G.G. has the female sexual and reproductive organs, and lacks the male sexual and reproductive organs. In short, there is no disagreement that G.G. is biologically of the female sex. That simple truth suffices to resolve this case."

Photo: Gavin Grimm stands on the front porch of his home in Gloucester, Va., in 2015. The high school student, who was born female but identifies as male, says it's discriminatory to make him use the girls' room or a single-stall unisex restroom at school. --Steve Helber/AP-File

Related reading on transgender students and Title IX:

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