The Battle over Bathrooms: Schools, Courts, and Transgender Rights

By Philips, Rosemary R. | Theory in Action, October 2017 | Go to article overview

The Battle over Bathrooms: Schools, Courts, and Transgender Rights


Philips, Rosemary R., Theory in Action


Legal battles over restrooms are nothing new in the United States. In fact, legal struggles regarding bathroom use have a curiously long and storied history.

The American Civil Rights movement of the 1950s and 1960s put an end to racially segregated bathrooms and increased recognition of the needs of individuals with physical disabilities led to the Americans With Disabilities Act in 1990, which sets forth requirements for accessible restrooms. Now, with increased awareness of LGBTQ issues, and with progress being made in areas of discrimination and same-sex marriage, there is increased focus on the "T" in LGBTQ and, in particular, on transgender public school students2 and their right to use bathrooms that correspond to their gender identity.

Schools are responsible for providing a safe, nurturing, educational environment for all students, and many schools have taken steps to address the needs of transgender students. However, school administrators often find themselves caught in a struggle to satisfy the needs and concerns of students, parents, and community, while trying to comply with the legal requirements.

Some schools have instituted inclusive policies without incident. Some schools thought they had successfully addressed the issue, but have faced backlash for doing so. Others have failed to take concrete steps to deal with the issue.

The challenge arises in part from disparate views of how to effectuate this in the school arena and the belief by some that it is impossible to fully meet the needs of transgender students without adversely affecting the needs of non-transgender students. This is further complicated by the fact that there is no clear guidance on this issue from the federal government.

To say the law is unsettled in this area is an understatement. Almost half of the states have lawsuits against the federal government over this issue and there have been, and continue to be, numerous lawsuits between students and school districts. In addition to being unsettled, the law is constantly evolving as policies change and new legal challenges are filed and decided.

Since it is the first case on this issue to travel all the way to the United States Supreme Court, the Virginia case of Gavin Grimm, a transgender high school student, provides a useful roadmap for negotiating the progression of a school bathroom access case through the legal system and understanding the various legal issues at play.

In 2014, Grimm was a 16-year old student at Gloucester High School in Gloucester, Virginia. Although he was assigned a female gender identity at birth, Gavin identified as male. Prior to his sophomore year, Grimm was diagnosed with, and was undergoing treatment for, "Gender Dysphoria" (G.G. ex rel. Grimm v. Gloucester County School District, 132 F.Supp.3d 736). According to the American Psychiatric Association, gender dysphoria occurs when there is "a marked difference between the individual's expressed/experienced gender and the gender others would assign him or her," which "causes clinically significant distress or impairment in social, occupational, or other important areas of functioning" (American Psychiatric Association, 2013). Part of Grimm's recommended treatment was for him to live as a boy, consistent with his gender identity (Grimm, 132 F.Supp.3d at 739).

Grimm's school was supportive in all respects, and Grimm began his sophomore year recognized as a boy by the administration and students. Among other things, the school agreed that he could use the boys' restroom. This took place without incident until approximately seven weeks into the semester when some parents and community members expressed concern. At a school board meeting on November 10, 2014, several people spoke against allowing Grimm to use the boys' restroom, stating:

[T]ransgender students' use of restrooms that match their gender identity would violate the privacy of other students and would lead to sexual assault in bathrooms. …

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