Virginia school board defends transgender bathroom ban

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 Virginia school board defended its transgender bathroom ban before a federal appeals court Tuesday, as a transgender man barred from using the boys bathroom in high school argued that the policy discriminated against him and violated his constitutional rights.

A judge ruled last year that the Gloucester County School Board had discriminated against Gavin Grimm, but the board appealed that ruling to the 4th U.S. Circuit Court of Appeals in Richmond.

David Corrigan, a lawyer for the school board, said school officials treated Grimm with respect after he began transitioning from female to male during high school, accommodating his request to use male pronouns and to be called by his new name.

Grimm had chest reconstruction surgery and hormone therapy. He also obtained a Virginia court order and Virginia birth certificate declaring his sex as male in 2016, when he was in 12th grade.

Grimm's lawsuit alleged that the school board violated his equal protection rights as well as Title IX, the federal policy that prohibits gender-based discrimination.

But Corrigan argued that the law protects against discrimination based on sex, not gender identity. Corrigan said that because Grimm had not undergone sex-reassignment surgery and still had female genitalia, the board’s position was that he remained anatomically a female.

“Our position is, it’s a binary concept, that you have males and females,” Corrigan said.

Joshua Block, an attorney with the American Civil Liberties Union, said the board treated Grimm differently than other students when it required him to use separate but unequal facilities — either bathrooms that corresponded with his biological sex — female — or private bathrooms.