On March 28, 2017, the United States Supreme Court will hear the case G.G. v Gloucester County School Board. The Gloucester oral arguments will mark the first time that the Supreme Court will hear a case regarding the civil rights of a transgender person. The plaintiff is Gavin Grimm, a 17-year-old trans boy whose public school district in Virginia responded to his gender transition by barring him from the boys’ bathroom at his high school. The district created a rule which mandates that students must use bathrooms and locker facilities corresponding to their biological sex rather than their gender identity. Gavin was born biologically female, but identifies as a male. The school board’s rule requires Gavin to use the girls’ bathroom, despite the fact that he identifies as a boy.
Gloucester poses the legal question of how the court should interpret Title IX of the Education Amendments of 1972 with regards to transgender students. Title IX prohibits discrimination on the basis of sex in federally funded educational activities. Specifically, when the Court rules on Gloucester it will decide whether Title IX’s protection from discrimination on the basis of sex includes protection from discrimination on the basis of gender identity. Whereas sex is a biological classification assigned at birth, gender identity is a person’s internal, deeply held sense of gender. For transgender people such as Grimm, their gender identity does not match their biological sex. Grimm is at the forefront of the trans rights movement in the United States. Gavin’s fight for equal treatment in his school highlights how far the U.S. is behind internationally accepted human rights standards, which stipulate that discrimination on the basis of sexual orientation and gender identity is a human rights violations.
On May 13, 2016, the Department of Justice (DOJ) and Department of Education (DOE) issued a joint guidance to educational institutions on the scope of Title IX, formalizing the Obama administration’s stance that discrimination against transgender students is sex discrimination and thus prohibited under Title IX. Although the Trump administration has reversed this official guidance, the legal question of the scope of Title IX protection is still at issue in Gloucester. The Gloucester case is on appeal from the Fourth Circuit Court of Appeals, which ruled in favor of Grimm. The Fourth Circuit held that school districts should defer to the Obama-era administrative guidelines which advocated for gender identity protections under Title IX.
G.G. v. Gloucester County School Board is one of several cases arising out of differing interpretations of Title IX in regards to the treatment of transgender students. Student v. Arcadia Unified School District, A 2013 complaint filed with the DOE and DOJ, ended in a settlement agreement which declared that the school district would protect gender non-conforming and transgender students from discrimination under Title IX. Immediately following the DOE and DOJ’s May 2016 guidance, eleven states led by Texas sued the Obama administration in Texas v. United States, claiming that the guidelines turned “workplaces and education settings… into laboratories for a massive social experiment, flouting the democratic process and running roughshod over commonsense policies protecting children and basic privacy right.” The presiding Fifth circuit judge entered an injunction banning public schools from following the DOJ and DOE guidance in August 2016.
Arguments for explicit expansion of sex discrimination laws to encompass gender identity have been successful in the employment law context, which bodes well for Grimm’s chance to win protection under Title IX. Title VII of the Civil Rights Act prohibits employment discrimination based on sex. In the 2012 Equal Employment Opportunity Commission (EEOC) appeal Macy v. Dep’t. of Justice, the EEOC found that discrimination against an individual because of his or her gender identity is sex discrimination and a violation of Title VII. Macy follows a long line of court decisions supporting coverage of LGBT and gender identity-related discrimination under Title VII.
The approach in Gloucester, Macy and other cases which use Titles IX and VII to advocate for trans protections differs from trans rights advocacy movements internationally. Whereas American trans rights advocates have used existing sex discrimination frameworks, most successful struggles for trans rights worldwide focused on gender identity directly or under the umbrella of LGBT rights. A survey of global trans rights victories conducted by Human Rights Watch highlights countries who have reduced discrimination by removing barriers to legal gender and name change and discusses several countries in South Asia who have legally recognized a third gender. Argentina’s policy on gender identity, which is widely seen as the most progressive in the world, is similarly focused on facilitating legal gender and name change for both and children under eighteen. It also provides for public coverage of medical costs associated with hormone treatments or gender change surgery. These types of laws are focused directly on transgender rights, rather than relying on existing laws prohibiting sex discrimination like Gloucester.
The UN Office of the Commissioner for Human Rights urges all countries to prohibit discrimination based on sexual orientation and gender identity. The U.S., although a member of the UN Human Rights Council, has not signed the Council’s most recent resolution on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. The Organization of American States (OAS), in its Inter-American Convention against All Forms of Discrimination and Intolerance, officially recognizes gender identity and expression as a prohibited grounds of discrimination. The U.S. is a member of the OAS, but has not signed the convention and is therefore not technically bound to follow it.
Although the U.S. is not a signatory to any international human rights convention which explicitly prohibits discrimination based on gender identity, it has an obligation to adopt such protections. The United Nations campaign Free and Equal argues that sexual orientation and gender protections are codified in the Universal Declaration of Human Rights, and thus are basic human rights which are binding on all countries.
If Grimm wins his case and gains protection for transgender students under Title IX it will be a victory for human rights across the United States, but still a limited victory. A decision that trans students are protected from discrimination under Title IX will ensure equal rights of trans students in publicly funded educational institutions, however it will offer no recourse outside of that context. The United States is still lacking comprehensive protections from discrimination for trans and LGBT individuals, and even with a win in Gloucester the U.S. will still not meet international human rights standards. Rather than forcing the advocacy community to win their rights in a piecemeal approach using various sex discrimination laws such as Title IX and Title VII, the United States should follow the international community in signing anti-discrimination treaties and implementing transgender protection laws nationwide.