If you haven’t heard about Virginia teen Gavin Grimm, it’s likely that you will soon. His struggle for rights will be before the Supreme Court in the next few years.
Actually, Grimm’s case was supposed to go before the Court this spring, until the Trump administration changed its interpretation of the Title IX law, which governs how transgender students are treated in public schools, and even if their gender identity is recognized at all.
Grimm, a transgender student at a Virginia high school, was required to use either the bathrooms that corresponded to his biological sex or a private bathroom. He was not permitted to use the boys’ bathrooms, the gender he identifies with.
Grimm’s case will help us gauge the current Court’s interpretation of the 14th Amendment’s equal protection clause. We already know from Obergefell v. Hodges that a majority of the Court (the four traditionally progressive members along with Justice Kennedy) believes that discrimination based on sexual orientation can be classified as sex discrimination, and is thus prohibited under equal protection. But will the Court view “sex” and “gender identity” as separate?
If gender identity is considered inessential to sex, and the term “sex” should be understood in an entirely biological context, it’s easy to make the argument that transgender people are not being treated any differently than other members of their biological sex. Under this logic, there is no sex discrimination present.
But this seems to be a view of sex and gender identity that is increasingly outdated, and adopting it would place a substantial burden on transgender people. Heartened by the success of the gay rights movement, more and more people who don’t identify with their biological gender are embracing their true identities. Transgender people currently represent 0.6 percent of the U.S. population, and that figure is likely to increase substantially as being transgender (hopefully) continues to gain popular acceptance. If transgender people, particularly transgender young people, do not have their identities validated, or at least tolerated, by the public school systems they spend their developmental years interacting with, they are likely to face serious discrimination throughout their lives.
Districts have argued that providing private bathrooms alleviates any form of discrimination that would be imposed by requiring transgender students to use the bathroom of their biological sex. But a student who is required to use a private bathroom is likely to be ostracized by such a requirement, and it implies that there is something strange or wrong about the transgender student.
Obergefell v. Hodges was a landmark decision that affirmed that the Court views the equal protection clause of the 14th Amendment as a part of the Constitution that is “living”, meant to evolve with the American people. Our nation has made incomplete, but substantial progress towards a society that affords gay and lesbian citizens equal rights and status. And, while the results of November’s election might serve as a refutation of such a belief, I do believe the United States is moving towards transgender recognition and acceptance in a similar way. The Supreme Court should recognize this evolution and rule that discrimination based on gender identity is a form of sex discrimination that is incompatible with equal protection.