Virginia school's transgender bathroom ban is back in court

NORFOLK, Va. (AP) — Gavin Grimm, a young man who has become a national face for transgender student rights, returns to a Virginia courtroom Tuesday to challenge his former high school's bathroom policy.

A federal judge in Norfolk is considering whether the Gloucester County School Board violated Grimm's rights when it banned him from using boys' bathrooms.

The hearing is the latest step in a yearslong legal battle that has come to embody the debate over transgender student rights, an issue that is far from settled in the nation's schools. Grimm, now 20, filed his lawsuit in 2015.

U.S. District Court Judge Arenda Wright Allen is unlikely to rule from the bench Tuesday after hearing oral arguments. But her eventual decision could impact schools in Virginia and reverberate beyond the state if the case reaches the federal appeals court that also oversees Maryland, West Virginia and the Carolinas.

Grimm and the American Civil Liberties Union say the school board violated his rights under the U.S. Constitution's equal protection clause as well as under Title IX, the federal policy that protects against gender-based discrimination.

The school board said it is protecting students' privacy and has discriminated against no one.

School systems have fallen on either side of this debate, leaving a patchwork of policies across the country.

Related: A transgender teen’s journey to transition 

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A transgender teen's journey to transition
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A transgender teen's journey to transition

Transgender teenager Gabriel Diaz de Tudanca, 17, hangs out with some trans friends at a park in Madrid, Spain, August 3, 2016. "My friends, both cisgender (people whose gender identity matches the sex they were assigned at birth) and trans are really important to me. They helped me overcome my fears of coming out to my parents," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, rides on a public bus to attend his school graduation in Madrid, Spain, June 20, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, shaves his face to grow more hair two months after he started taking testosterone in Madrid, Spain, February 15, 2016. "I took hormone blockers for three months and was soon started on testosterone. My period stopped right away and that made me very happy, I really disliked it," Diaz de Tudanca said.

(REUTERS/Susana Vera)

The civil registry official papers of transgender teenager Gabriel Diaz de Tudanca, 18, reflect the legal change in gender and name in Madrid, Spain, November 25, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, and his girlfriend Ruth relax by a pool in Madrid, Spain, July 2, 2017. "It has taken me a while to find someone I felt saw me as the person I really am. That's how I feel with Ruth. She didn't know much about transgender issues, but everything has felt very natural from the very beginning and we have the support of both our families," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, gets kissed by his mother Mariely after getting the civil registry official papers that reflect the legal change in his gender and name in Madrid, Spain, November 25, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, hugs his mother Mariely as the Madrid regional Parliament approves a law to make the transition easier for trans minors in Madrid, Spain, March 17, 2016. "My mother has had a hard time with my transition, but she's behind me a hundred percent. Things would have been so much harder if I didn't have my parents' support," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Current pictures of transgender teenager Gabriel Diaz de Tudanca, 18, lie next to his former identity card as he waits to be issued with a new identity card in Madrid, Spain, January 26, 2017.

(REUTERS/Susana Vera)

Transgender man Gabriel Diaz de Tudanca, 20, gets ready before going out at his parents' home, where he lives, in Madrid, Spain, August 6, 2018. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, waits to be taken to the operating room to have his female to male chest reconstruction surgery in Madrid, Spain, October 26, 2016. "We have to be diagnosed with gender dysphoria in order to get medical treatment. My breasts always made me feel very uncomfortable, I couldn't wait to get them removed, but I've always disliked the term gender dysphoria because I don't feel like I have a mental disorder," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender man Gabriel Diaz de Tudanca, 19, wakes up from a nap at his parents' home, where he lives, in Madrid, Spain, June 29, 2018. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, and his girlfriend Ruth walk in a park in Madrid, Spain, May 15, 2017. "It has taken me a while to find someone I felt saw me as the person I really am. That's how I feel with Ruth. She didn't know much about transgender issues, but everything has felt very natural from the very beginning and we have the support of both our families," Diaz de Tudanca said.

(REUTERS/Susana Vera)

A school graduation picture of transgender man Gabriel Diaz de Tudanca, 20, is displayed at his parents' home, where he lives, in Madrid, Spain, August 6, 2018. 

(REUTERS/Susana Vera)

Transgender man Gabriel Diaz de Tudanca, 20, gets a tattoo of a testosterone molecule and the words 'Self-Made Man' at a tattoo parlour in Madrid, Spain, September 18, 2018. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, holds an LGBT flag during Pride Week in Madrid, Spain, July 1, 2016. "We, the young trans people, are the ones who have to continue the work to make transgender lives visible and help society understand that we are not about prostitution, neglect or abandonment. We are people with a future," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender man Gabriel Diaz de Tudanca, 20, smokes as he heads to a hospital check-up in Madrid, Spain, August 6, 2018. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, undergoes a female to male chest reconstruction surgery in Madrid, Spain, October 26, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, is examined by plastic surgeon Jorge Planas as he searches for a surgeon to carry out his female to male chest reconstruction surgery in Madrid, Spain, November 23, 2015. "Once I came out as a trans boy both socially and with my family, my main objective was to get started with the hormones and go through the chest reconstruction surgery. I really disliked that part of my body," Diaz de Tudanca said.

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, shows a friend a picture of himself with the sentence "I'm trans" as part of a public campaign to fight hate crimes at a metro station in Madrid, Spain, July 1, 2016. "After I did the LGBT phobia campaign some guys started writing hate comments on my Instagram account. Things like, after we finish with you, you won't need a sex change. I reported it and we are waiting for trial," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender young man Gabriel Diaz de Tudanca, 20, and his girlfriend Ruth take part in a protest to stop transgender pathologization in Madrid, Spain, October 20, 2018. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, sings karaoke with friends in Madrid, Spain, October 22, 2016. The lyrics on the screen say: 'I want to be a man like you and have pleasure in the city.' 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, undergoes a female to male chest reconstruction surgery in Madrid, Spain, October 26, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 18, reacts next to his mother Mariely and surgeon Jesus Lago upon seeing his chest for the first time after undergoing his female to male chest reconstruction surgery in Madrid, Spain November 2, 2016. "My life changed completely after the chest removal operation. No more binders, no more neoprene suits, no more hiding. For the first time I felt free," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, displays writing on his arm at the end of a school day in Madrid, Spain, May 28, 2015. "All the barriers that we face come from the lack of information there is about what it means to be transgender. Things have improved since I came out, we have become more visible, but we still have to keep working on educating society," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

A Spanish Civil Guard looks at transgender teenager Gabriel Diaz de Tudanca, 17, after attending the official presentation of the public campaign to fight hate crimes in which he was featured, in Madrid, Spain, May 17, 2016. 

(REUTERS/Susana Vera)

A nurse prepares a hormone blocker for transgender teenager Gabriel Diaz de Tudanca, 16, at a health-care centre in Madrid, Spain, December 16, 2015. Diaz de Tudanca was three years old when he returned one day from school and told his mother he was a boy and he wanted to be called Oscar. No one made anything out of it until years later he came out as a transgender man, first to his inner circle of friends and then to his parents, who have been very supportive of his transition and have helped him face all the social, legal and medical challenges that have have come with his decision to be true to himself. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, laughs while his mother Mariely shows pictures of him as a girl at their home in Madrid, Spain, May 27, 2015. "My mother caught me binding my chest one morning and I told her I did not feel comfortable with the gender I was assigned at birth. She did not understand what I said, but she later told me that if I decided to wear a flower vase on my head, she would not understand it either, but she would accept it and join me doing the same," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, waits to get in the water with members of the LGBT swimming club Halegatos in Madrid, Spain, February 8, 2016. "I couldn't wait to go through chest surgery. I was so tired of having to use a neoprene suit every single time I went to the pool or the beach. I was so uncomfortable with my breasts, they did not feel like a part of my body," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, is nervous as he lays down before getting his first testosterone shot in Madrid, Spain, December 16, 2015. "I was very excited to get started on the testosterone. I was eager for all the changes that were going to come with it, like growing more hair, the deepening of my voice, the redistribution of my body fat. But I didn't want to make much of a mental picture of the way I could look so as not to feel disappointed afterwards," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, talks to another transgender friend as they both provide information on transgender issues during Pride Week in Madrid, Spain, June 25, 2015. Diaz de Tudanca was three years old when he returned one day from school and told his mother he was a boy and he wanted to be called Oscar. No one made anything out of it until years later he came out as a transgender man, first to his inner circle of friends and then to his parents, who have been very supportive of his transition and have helped him face all the social, legal and medical challenges that have have come with his decision to be true to himself.

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 17, walks out of the men's room at a club that segregates by gender naming the womenÕs room 'Gatas' (Female cats) and the men's room 'Gatos' (Male cats) in Madrid, Spain, February 5, 2016. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, hugs his mother Mariely as they both attend a tribute for a transgender boy who committed suicide in Madrid, Spain, December 27, 2015. "I feel lucky I've had the support of my parents and my friends to endure all the pressure. We bottle up so many emotions for so long that sometimes we just give up," Diaz de Tudanca said. 

(REUTERS/Susana Vera)

Transgender teenager Gabriel Diaz de Tudanca, 16, and his schoolmate Alina hang out after school in Madrid, Spain, May 20, 2015. Diaz de Tudanca was three years old when he returned one day from school and told his mother he was a boy and he wanted to be called Oscar. No one made anything out of it until years later he came out as a transgender man, first to his inner circle of friends and then to his parents, who have been very supportive of his transition and have helped him face all the social, legal and medical challenges that have have come with his decision to be true to himself. 

(REUTERS/Susana Vera)

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"Whether it's the best of times or the worst of times for transgender students really can depend on where you live and who your principal is," said Harper Jean Tobin, policy director for the National Center for Transgender Equality.

Tobin said Grimm's case will likely join the "steady drum beat" of recent court rulings favoring transgender students in states including Maryland , Pennsylvania and Wisconsin .

But Gary McCaleb, senior counsel for the conservative Christian group Alliance Defending Freedom, said the overall issue is far from resolved.

McCaleb cited a federal discrimination complaint the ADF filed in June that says a Connecticut policy on transgender athletes is unfair because it allows transgender girls to consistently win track and field events. He also said a pending U.S. Supreme Court case involving a transgender woman who was fired by a Michigan funeral home could impact school bathroom policies.

McCaleb said that "no student's right to privacy should be contingent on other students' beliefs about their gender."

The ACLU says Grimm's mother notified school administrators that as a result of his medical treatment for gender dysphoria, he had transitioned to a boy at the start of his sophomore year at Gloucester High School, which is about 60 miles (95 kilometers) east of Richmond and near the Chesapeake Bay.

He was initially allowed to use the boys' restroom. But after some parents complained, students were told their use of restrooms and locker rooms "shall be limited to the corresponding biological genders" or a private restroom.

A federal judge sided with the school board. But the 4th Circuit Court of Appeals ruled in Grimm's favor, citing a directive issued by the administration of President Barack Obama that said students can choose bathrooms that correspond with their gender identity.

Grimm drew more international attention when the U.S. Supreme Court scheduled a hearing for his case, but it was cancelled after the Trump Administration rescinded the Obama-era directive on bathrooms.

Grimm graduated in 2017 and moved to California, where he's worked as an activist and educator and studied at a community college. But his case has continued in the lower courts.

In February, the school board appeared to consider settling the case and proposed ending its bathroom policy. But many residents spoke out against the suggested change. The board did not take a vote on it.

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