Columbia Law School’s Sexuality and Gender Law Clinic, on Behalf of NAACP LDF and AALDEF, Urges Supreme Court to Strike Down School Board’s Restroom Discrimination Against Transgender High School Students

In an amicus brief filed today with the U.S. Supreme Court by Columbia Law School’s Sexuality and Gender Law Clinic, two of the nation’s leading civil rights legal organizations, NAACP Legal Defense and Educational Fund and the Asian American Legal Defense and Education Fund, challenged a Virginia school board’s decision to exclude a high school student from the boys bathroom because he is transgender.

Gavin Grimm, the 17-year old plaintiff-respondent in the case, challenges a policy adopted by the Gloucester County, Virginia school board that forbids transgender students from using bathroom facilities consistent with their gender identity. The policy provides that use of boys and girls bathrooms in the school district “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” Grimm won in the federal appeals court below, and the school board sought review in the nation’s high court.

The brief reviews a disturbing American history of rules enacted by state and local governments that physically separated one group of people from others based on unfounded fears and prejudices. These rules applied to bathrooms, swimming pools, recreational facilities, marriage, neighborhoods and workplaces, and are now understood to violate our most basic commitments to equal treatment under law.

Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and Director of Columbia Law School’s Sexuality and Gender Law Clinic said, “Discomfort and unfounded fears are never good reasons for rules that separate one group of people from others.” She added, “Our history shows that these kinds of rules are shameful violations of the American commitment to equal treatment under law. There is no exception to this equality commitment for those who would discriminate against transgender students.”

“The brief filed jointly today powerfully demonstrates that the demand for equality and justice and the arguments used frustrate those rights are drawn from a common well. LDF’s rich and unique history challenging discrimination in public accommodations provides a critical vantage point from which to analyze the exclusion of transgender persons. We are proud to work together with the Columbia Law School Sexuality and Gender Law Clinic and Asian American Legal Defense and Education Fund in providing this essential context and perspective,” said Sherrilyn Ifill, President and Director-Counsel of LDF.

Kenneth Kimerling, Legal Director of the Asian American Legal Defense and Education Fund, said: “The experience of Asian Americans in the United States is replete with acts of discrimination based on biased beliefs about Asians, from the Chinese Exclusion Act to the forced incarceration of Japanese Americans during the World War II, to present-day attacks on Asian Americans who are from countries with large Muslim populations. The treatment of transgender students by Gloucester County is just another example in a long American history of false fears leading to discriminatory acts.”

As the brief argues: “There is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division and instill subordination.” Drawing parallels between the safety and discomfort rationales offered by governments for racial separation in bathrooms and other settings, the brief adds: “This disreputable tradition of state and local governments enshrining fear or hostility toward a disfavored group of people into laws requiring their physical separation from others should encourage this Court to view with skepticism the rationales proffered by local officials here.”

The brief demonstrates this striking similarity between support for racially separate spaces and school board policy here: “[T]he bathroom-exclusion rule here fits within a troubling tradition of local and state governments justifying the physical separation of certain groups from others under the guise of providing protection or avoiding discomfort.” It explains, too, that both courts and society at large have rejected discrimination of this kind.

Co-counsel included Sherrilynn Ifill, Janai Nelson, Christina Swarns, Monique Lin-Luse, Deuel Ross, Coty Montag, and John Paul SchnapperCasteras of NAACP LDF, and Peter K. Stris, Elizabeth Rogers Brannen, Dana Berkowitz, and Victor O’Connell of Stris & Maher. Columbia Law SchoolColumbia Law School students Jordan Weatherwax ’18 and Princeton Hynes ’17 provided research for the brief.

Read the brief.

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