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Court: School transgender bathroom policy unconstitutional

FILE - In this July 23, 2019, file photo, Gavin Grimm, who has become a national face for transgender students, speaks during a news conference held by The ACLU and the ACLU of Virginia at Slover Library in Norfolk, Va. A federal appeals court is hearing arguments Tuesday, May 26, 2020, in the case of Grimm who sued a Virginia school board after he was barred as a student from using the boys bathrooms at his high school. A judge ruled last year that the Gloucester County School Board had discriminated against Grimm. (Kristen Zeis/The Daily Press via AP, File)
FILE - In this July 23, 2019, file photo, Gavin Grimm, who has become a national face for transgender students, speaks during a news conference held by The ACLU and the ACLU of Virginia at Slover Library in Norfolk, Va. A federal appeals court is hearing arguments Tuesday, May 26, 2020, in the case of Grimm who sued a Virginia school board after he was barred as a student from using the boys bathrooms at his high school. A judge ruled last year that the Gloucester County School Board had discriminated against Grimm. (Kristen Zeis/The Daily Press via AP, File) (Kristen Zeis/ Virginian-Pilot)

RICHMOND, Va. – A federal appeals court ruled Wednesday that a Virginia school board's transgender bathroom ban is unconstitutional and discriminated against a transgender male student who was barred from using the boys bathrooms in his high school.

The ruling is a victory for transgender rights advocates and Gavin Grimm, a former student at Gloucester High School who was required to use restrooms that corresponded with his biological sex - female - or private bathrooms.

The Richmond-based 4th U.S. Circuit Court of Appeals found that the Gloucester County School Board violated Grimm's constitutional rights when it banned him from using the boys bathrooms. The decision by the three-judge panel was 2 to 1.

In the majority opinion, the appeals court wrote that Grimm was forced to use "special bathrooms that might as well have said 'Gavin' on the sign."

"Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender," the ruling stated. "Unlike the other boys, he had to use either the girls restroom or a single-stall option."

The Gloucester County school board had argued that laws protect against discrimination based on sex, not gender identity. Because Grimm had not undergone sex-reassignment surgery and still had female genitalia, the board's position was that he remained anatomically a female.

David Corrigan, an attorney for the school board, wrote in an email Wednesday that the board is reviewing the decision and declined to comment further.

The ruling is another decision by a federal appeals court that could have a wide-ranging effect on how schools treat transgender students. But it remains to be seen whether the issue will make its way to the U.S. Supreme Court.

The five states in the 4th Circuit's region - Maryland, North Carolina, South Carolina, Virginia and West Virginia - are bound by the court's ruling, said Paul D. Castillo, an attorney for the LGBT rights group Lambda Legal.

Similar decisions have been made by other federal appeals courts. For instance, the 11th Circuit ruled this month in favor of a former high school student in Florida in an opinion that would cover schools in that state as well as Georgia and Alabama.

The Supreme Court often takes up a case when there's been a split decision between circuit courts, and there hasn't been one on this issue, Castillo said.

"The point is that transgender students across the country who are enrolled in schools with affirming policies have had no problems with respect to many of the concerns that are raised," Castillo said. "In fact, it improves diversity and school climates when you embrace all students."

Grimm, who was represented by the American Civil Liberties Union, released a statement through the organization that said Wednesday's ruling "is an incredible affirmation for not just me, but for trans youth around the country."

"All transgender students should have what I was denied: the opportunity to be seen for who we are by our schools and our government," he said.

The panel upheld a decision from a federal judge in Norfolk who ruled last year that Grimm's rights were violated under the U.S. Constitution's equal protection clause as well as under Title IX, a federal civil rights law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

The appeals court's opinion offered a sweeping look at the challenges that transgender students face, including widespread harassment and major mental health disparities.

Grimm began transitioning from female to male while he was a student at his high school, located in a mostly rural area about 60 miles (95 kilometers) east of Richmond. He had chest reconstruction surgery and hormone therapy.

Grimm filed his lawsuit in 2015 and argued that he suffered from urinary tract infections from avoiding school bathrooms as well as suicidal thoughts that led to hospitalization.

The lawsuit became a federal test case when it was supported by the administration of then-President Barack Obama. It was scheduled to go before the U.S. Supreme Court in 2017. But the high court hearing was canceled after President Donald Trump rescinded an Obama-era directive that students can choose bathrooms corresponding with their gender identity.

The appeals court also backed the lower court's ruling that the school district must update the gender on Grimm's transcripts.

Grimm, now 21, graduated in 2017. He now lives in California and is an activist for transgender rights.