Will the Supreme Court tell this transgender boy he has to pee with girls?

Gavin Grimm

Gavin Grimm AP Photo/Steve Helber

The question of where transgender student Gavin Grimm pees may now rest with the three women and five men who wear flowing black gowns to work.

Virginia‘s Gloucester County School Board on Monday formally appealed to the U.S. Supreme Court to reverse the decision of a federal appeals court, reported BuzzFeed. The panel sided with Grimm, a 16-year-old who identifies as a male and had been using the boys’ bathroom at school for about seven weeks, until protests by parents led to a new school district policy.

With the help of the American Civil Liberties Union, Grimm took the school board to court.

Gloucester’s policy effectively restricts restroom use based on the gender assigned each student at birth — effectively barring transgender students, like Grimm, from using the restroom that corresponds with their gender identity. A decision by the 4th Circuit Court of Appeals issued an injunction against Gloucester schools, upholding the Obama Administration’s interpretation of Title IX of the Education Amendments of 1972 to include a ban on anti-transgender discrimination.

But earlier this month, the Supreme Court stayed that injunction, forcing Grimm, and any other transgender student, to use only the bathrooms matching their birth certificates.

Now, however, the lawyers for the school district are taking a different tack with the high court, claiming they are not trying to deny transgender rights, but are responding to “agency behavior,” specifically how the administration is setting policies such as how to interpret Title IX, according to documents submitted to the Supreme Court.

“[T]his case is not really about whether G.G. should be allowed to access the boys’ restrooms, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into the restrooms and locker rooms that accord with their gender identity,” claim the lawyers. “Fundamentally, this case is about whether an agency employee can impose that policy in a piece of private correspondence.”

The process is that with the petition filed and briefs submitted to the high court, the justices will likely schedule a private vote on whether to hear the case, something that may not be announced until the court reconvenes for a conference on Monday, September 26.

As BuzzFeed noted, four of the court’s eight justices need to approve the request to grant what’s called the certiorari petition and hear an appeal. However, if the justices take the case, five votes are necessary for there to be a majority opinion. A split vote of 4-to-4 would let stand the lower court’s decision in favor of Grimm and the administration.

However, that decision would apply only to Grimm and Gloucester, and not set a national precedent.

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