As the case of Gavin Grimm v. Gloucester County School Board heads for another round of oral arguments in the coming months, schools are tasked with the decision to either allow or bar transgender students from accessing bathrooms and facilities aligning with their gender identities.
While many schools have chosen to move forward with crafting policies for the former, some have opted to either wait for more guidance from the courts or lean toward barring transgender students from accessing facilities based on their gender-alignment altogether.
But the latter two options might not be in schools’ or students’ best interest.
What the courts say
While the U.S. Department of Education currently “isn’t enforcing” transgender students' rights under Title IX, “trans folks can still sue, and can still win in court," according to Mara Keisling, founder and executive director of the National Center for Transgender Equality.
And though the Trump administration reversed Obama-era guidance protecting transgender students’ rights to access bathrooms and facilities of their choosing, an overwhelming number of lower courts have actually decided in favor of transgender and nonbinary students.
“Right now, we can’t look for help from the federal government,” Keisling said. “But we’re winning in the courts.”
An “overwhelming majority of lower courts” have found school districts barring students from using bathrooms or facilities aligning with their gender identity are violating the law, said Joshua Block, a senior staff attorney at the ACLU's LGBT Project and the lead attorney on Grimm’s case.
And if the consensus among lower courts continues, the U.S. Supreme Court may not even have a reason to take it on, Block said.
Attorneys suggest crafting and enforcing policies in favor of transgender students to avoid lawsuits. “If the school district wants to wait to get sued, it’ll have to pay litigation costs and pay attorney fee award,” Block said, pointing out it’s a “waste of taxpayer dollars.” But some districts want to “pass the buck,” he said, and “say that the courts forced them to do the right thing.”
While opponents sometimes claim transgender students using bathrooms they identify with violates the privacy of other students, that argument has never held up in court, and judges have immediately shot down lawsuits against school districts for allowing transgender students to use bathrooms aligning with their identities.
“Considering the federal court cases and state acts addressing human rights generally,” Brian Schwartz, an education lawyer serving as general counsel for the Illinois Principals Association, said, “the transgender student will need to be accommodated.”
Protecting all students
Schools failing to do so could not only be setting themselves up for a lawsuit according to lawyers, but researchers say they could be putting the well-being of transgender students at risk.
According to a June 2019 study based on surveys from just over 3,600 transgender high school students across the nation, researcher Gabe Murchison from the Harvard T.H. Chan School of Public Health found transgender and nonbinary youth who reported having experienced bathroom and facility restrictions at school were significantly more likely to have been sexually assaulted in the year before.
While researchers can’t point to a causal link, Murchison said there could be a few possibilities bathroom and facility restrictions are associated with sexual violence targeting transgender and nonbinary students.
“When kids have their restroom or locker room restricted, they actually could end up using facilities less safe for them,” Murchison said. Other possible explanations include students being targeted by their peers as a result of restrictions making transgender students more visible, and that schools in which transgender youth are assaulted are the same schools that are poorly managed and where sexual assault is more likely to occur in general.
Murchison said other research does suggest certain efforts can make schools safer for these students, including anti-bullying policies, required staff training for bias-based bullying and harassment intervention, and single-person all-gender restrooms.
“That’s a safe and private space, but because everybody can use it, it’s not singling out transgender and nonbinary kids,” Murchison said.
As a result of these inclusive policies, some schools have faced backlash from parents and sometimes students.
Murchison suggests schools first start by engaging transgender and nonbinary students.
“Students are the ones in schools dealing with their peers every day, and if they’re transgender and nonbinary then they have a special sense of what issues are facing them,” he said, adding those students would also have a better sense of how likely it is there would be a backlash and what it would look like.
Because students also often take their cues from parents and other adults in the community, it is also important to communicate with and engage those stakeholders — especially those who aren’t familiar with transgender and nonbinary issues.
These parents, Murchison said, are often the “loudest” in their opposition, but their hesitation is often rooted in some “real concerns” such as bathroom and locker-room privacy that schools should address regardless. Because these facilities tend to be the least supervised and don’t always encourage privacy, they are also often the site of bullying, harassment and sexual violence.
“That real concern ends up getting pinned on the issue of transgender youth, who in reality are generally much more likely to be the victims of those problems,” Murchison pointed out.