University of Detroit Mercy School of Law Professor Catherine J. Archibald has written a ground-breaking article on transgender bathroom rights. Her article, Transgender Bathroom Rights, will be published this month in the Fall 2016 edition of the Duke Journal of Gender Law & Policy. A draft of it can also be read here.
On October 28, 2016, the Supreme Court announced that it will review the decision of the U.S. Court of Appeals for the Fourth Circuit concerning a transgender student, Gavin Grimm, who seeks to use the boys’ bathroom in a Virginia high school. The Fourth Circuit ruled in favor of the student and granted Grimm the right to use the boys’ bathroom. The Supreme Court then issued an emergency stay in the case and will hear oral arguments sometime this term. The case marks the first time the U.S. Supreme Court has considered the controversial issue.
The lawsuit argues that the high school’s bathroom policy is unconstitutional under the Fourteenth Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law which prohibits discrimination based on sex by schools that receive federal money. The legal issue is whether the federal law can be interpreted to also ban discrimination based on gender identity. Archibald notes that after winning the right to same-sex marriage in all 50 states just last year, the LGBT community is once again battling in court for its rights, this time for the right of transgender people to use bathrooms and locker rooms that match their gender identity.
In its “Dear Colleague Letter on Transgender Students,” the federal government recently interpreted federal law as requiring that transgender students be permitted to use bathrooms and locker rooms that correspond with their gender identity in schools receiving federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this interpretation. Archibald’s article examines the current court battles over transgender bathroom and locker room rights and discusses possible outcomes of the most contentious legal issues in dispute. These issues include the procedures used by the federal government in issuing its interpretation, the substantial legitimacy of the interpretation and the Constitutional authority of the federal government to issue its interpretation.
The article concludes that courts should uphold the federal government’s recent interpretation of federal civil rights law, because the federal government’s interpretation is a reasonable interpretation, lawfully issued, that mirrors the best practices and medical and psychiatric recommendations for the protection and inclusion of a vulnerable group.
