DAVID GREENE, HOST:
A school district trying to stop a transgender student from using the boys bathroom has won a legal victory. The Supreme Court is going to take up the case, which pits a school board in Gloucester County, Va., against one of their students, 17-year-old Gavin Grimm. He was born female but identifies as male. Because the Supreme Court has taken the case, Grimm will not be allowed to use the boy's restroom at school until the justices weigh in.
Their decision could have a major impact on transgender rights in America. And this morning, we'll hear the legal arguments from lawyers on both sides. Kyle Duncan represents the school board. He says the Department of Education overstepped its authority when it issued national guidelines protecting the rights of transgender students.
KYLE DUNCAN: Our view of the case is that how - whatever you think about this issue - and it's a difficult issue, and people are on both sides of the issue. But whatever you think about it, it shouldn't be decided through the stroke of a pen of a federal bureaucrat who's writing an opinion letter in the - in the - for the Department of Education and sort of saying, this is how we think the issue should be resolved.
GREENE: And this is very important, right? I mean, I know there are moral arguments on both sides of this. And there are people on the other side who would say that transgender rights are so important that - and they really are at stake here. But - but you really are focusing on kind of a technicality in the law when it comes to an agency. Say more about that if you can.
DUNCAN: Sure. And, of course, we wouldn't say it's - I understand why people might think it's a technicality. What we'd say is it's a question about not so much what is decided but who decides. So for example, the law of Title 9, which is the law that governs programs that get federal education dollars...
GREENE: And we should say bans sexual discrimination in public schools, right.
DUNCAN: Exactly. So if we're going to change the law to say it's got to be adjusted to respond to a new situation, a situation involving transgender rights, our position is Congress needs to do that, not the federal administrative agency and certainly not the way that it happened here.
If you - if you take a step back and you look at the way the school board, our clients in this case, tried to resolve the issue, they're faced with a situation where they want to show a great deal of compassion and care to this student, but they also have to balance out the rights to privacy of all of the other students.
And so what do they do? Well, the school board is meeting. They're hearing input from the community on both sides of the issue. This is a school and a school district that's trying very hard to be compassionate and fair to everybody in the face of a difficult situation.
The difficulty in this case is the inflexible position that the Justice Department is taking, where the Justice Department says you have to reinterpret what sex means in Title 9 to include gender identity and really to let gender identity trump all other considerations of sex and privacy. If we're going to change that, then I think that has to be carefully debated. And we want to - we look forward to explaining that to the court.
GREENE: Based on your history with the Supreme Court, will they make a decision - these justices - based on some of the - the legal questions you're talking about? You know, whether an agency - as you suggest, a low-level employee in an agency can make a decision about how a regulation is interpreted, or will they really be making a decision based on some of the moral arguments here - right to privacy, transgender rights, the larger issues like that?
DUNCAN: That's a great question. From my perspective, the ideal is - is that the court looks at the legal question and says, we are not here to decide social policy for the nation. I don't think any of the justices want to decide social policy for the nation. They perceive themselves, I think, as deciding legal questions. That's why we've framed the question in the way we've done it, which is it has to do with not so much what we're going to decide but who gets to decide it and how.
GREENE: Kyle Duncan, thanks for coming in. We appreciate it.
DUNCAN: Thanks for having me.
GREENE: OK, that's Kyle Duncan, who represents the school board of Gloucester County, Va. Now to attorney Josh Block. He represents the transgender student, Gavin Grimm.
JOSH BLOCK: The concern has never been about Gavin as an individual. There are these sort of hypothetical fears of future transgender students that don't actually exist. And the fact is that there are numerous ways that schools across the country already protect privacy for all students equally.
And any student who wants additional privacy for whatever reason can use a separate restroom if that makes them more comfortable. But what you can't do is take a transgender student and say that he has to use the separate restroom from everyone else because other people object to his presence there.
GREENE: So your argument is essentially that Title 9 needs to catch up to where we are as a country and a society today and protect students like Gavin?
BLOCK: My argument is Title 9 already protects Gavin. The law already says what it needs to say. What we're saying is that, in recent years, schools passed policies that never existed before, saying that students must now be limited to restrooms based on their sex assigned at birth. And no administrator, no teacher has any discretion ever to do anything except that.
GREENE: Josh Block, let me ask you to respond to Kyle Duncan, who is representing the school board here. His legal argument is that this should be debated in this country, it should be debated in Congress and that an agency just making the decision that a student like Gavin should be able to use a restroom - you know, it's just too big an issue to solve in such a fast way. How do you respond to that?
BLOCK: Well, I think that, when it comes to sex discrimination, that's not something that individual communities get to decide. Individual communities don't get to say that they're uncomfortable with boys and girls being treated equally at school. And so what you have here is a case of sex discrimination. You have a student that, because of his sex, is being told that he has to be excluded from the same common spaces as everyone else.
And as we see it, it's the school boards here that are asking for something new. They want a new exemption to the regulations that lets them not only create separate restrooms but banish trans kids from using those restrooms. What you have here is a concerted campaign to gin up fear and misunderstanding about trans people by portraying them as being nothing more than a male predator in a dress that wants to prey on kids.
GREENE: Although your counterpart did not make that argument. He said there's - there are real, you know, legal issues at stake. You're saying that you see different motives.
BLOCK: I'm saying that that is certainly what we've seen in campaigns like in Houston, where a non-discrimination ordinance was repealed, and in North Carolina in HB2.
GREENE: These were some of the state debates that we saw over - over the use of bathrooms in schools.
BLOCK: Yes, absolutely. I think that the argument that, because this is a sensitive topic, that means that transgender people need to be banished from the facilities is just not an argument that's consistent with our civil rights laws.
GREENE: All right. Joshua Block, thanks so much for talking to us. We really appreciate it.
BLOCK: Thanks for having me.
GREENE: That was Josh Block, an attorney with the American Civil Liberties Union. Transcript provided by NPR, Copyright NPR.