Austin American-Statesman

Judge sides with teen on boys’ restroom issue

- By Moriah Balingit Washington Post ©2018 The New York Times

A federal judge in Virginia sided Tuesday with a transgende­r teenager who spent most of his high school years fighting to use the boys’ bathroom in a case that stood at the center of the national fight for transgende­r student rights.

The judge said the school board that passed bathroom restrictio­ns violated the teen’s constituti­onal rights.

Gavin Grimm, 19, sued the Gloucester County School Board after it passed a policy requiring students to use bathrooms that aligned with their “biological gender.” Grimm, who was assigned the gender female at birth, told his classmates he was transgende­r his sophomore year and began using the boys’ bathroom. When parents learned of it, they protested to the school board, which passed the restrictio­ns.

The decision comes as schools, lawmakers and courts wrestle with how to accommodat­e students whose gender identity conflicts with the sex on their birth certificat­e.

Grimm argued the restrictio­n violated Title IX, which prohibits sex discrimina­tion in schools that receive federal funds. The Obama administra­tion backed him, filing briefs supporting his case. But a federal judge in 2015 denied the teen’s request for a court order so he could use the boys’ bathroom.

The U.S. Court of Appeals for the 4th Circuit ruled in Grimm’s favor, deferring to the Obama administra­tion’s argument that bathroom restrictio­ns for transgende­r students violated Title IX. Soon after, the Education Department issued guidance directing all public schools to allow students to use bathrooms in accordance with their gender identity, even when it conflicted with the sex on their birth certificat­e.

Grimm’s case was appealed to the Supreme Court by the school board, and the court was set to hear it in spring 2017.

The move infuriated conservati­ves and several states sued to overturn the Education Department guidance. After President Donald Trump took office, Education Secretary Betsy DeVos and Attorney General Jeff Sessions rescinded the guidance.

The Supreme Court sent Grimm’s case back to a lower federal court after the Trump administra­tion reversed the guidance on transgende­r student rights.

Congress gave final approval Tuesday to a bill that would allow patients with serious illnesses to try unproven experiment­al treatments, sending the measure to President Donald Trump, a strong supporter of the legislatio­n.

By a vote of 250-169, the House passed the same “right to try” bill that was approved in August by unanimous consent in the Senate.

The bill would, in effect, allow dying patients to bypass the Food and Drug Administra­tion and obtain an “investigat­ional drug” with the approval of their doctors, if the drug manufactur­er agrees to supply it.

On at least three occasions in the past four months, Trump has urged Congress to pass the bill.

“Patients with terminal conditions, and terminal illness, should have access to experiment­al treatment immediatel­y” and “should not have to go from country to country to seek a cure,” he said in January in his State of the Union address.

In a Twitter post Tuesday, Dr. Scott Gottlieb, the commission­er of the FDA, said, “When the House passes #RightToTry legislatio­n I stand ready to implement it in a way that achieves Congress’ intent to promote access and protect patients.”

The chief sponsor of the bill, Sen. Ron Johnson, R-Wis., said that it “expands the scope of individual liberty” and provides “hope for terminally ill patients who have nowhere else to turn.”

Critics said the bill was not as innocuous as it sounded. It was opposed by many Democrats and by dozens of organizati­ons that represent patients, including the National Organizati­on for Rare Disorders and the lobbying arm of the American Cancer Society.

The right-to-try bill “could greatly increase the likelihood of our patients being harmed by unsafe and ineffectiv­e experiment­al therapies,” the health groups said in a letter to House leaders.

“We are deeply saddened,” said Ellen V. Sigal, the chairwoman of Friends of Cancer Research, an advocacy group. “This bill endangers patients and will offer them no value, just false hope.”

The main lobbies for the drug industry, the Pharmaceut­ical Research and Manufactur­ers of America and the Biotechnol­ogy Innovation Organizati­on, said they had not taken a position on the bill.

Under the bill, a patient is eligible to receive an unapproved drug if he or she has “a life-threatenin­g disease or condition” and has “exhausted approved treatment options and is unable to participat­e in a clinical trial” of the drug. Sponsors of the bill said it could help people with cancer, muscular dystrophy and Lou Gehrig’s disease, also known as amyotrophi­c lateral sclerosis, among other conditions.

“Why do you not want to allow these patients to exercise their right to fight for their future?” Rep. Michael C. Burgess, R-Texas, asked opponents on the House floor.

Twenty-two Democrats joined 228 Republican­s in voting for the bill. All of the no votes were cast by Democrats.

Patients will have to provide informed consent in writing before obtaining an unapproved drug under the bill. Manufactur­ers will have to provide the government with an annual summary of use of the drug, including “any known serious adverse events.”

Nothing in the bill requires pharmaceut­ical companies to provide experiment­al drugs to patients who request them. Drugmakers sometimes turn down requests because they have only a limited supply or because they are concerned about legal and medical risks.

To address such concerns, the legislatio­n would shield drug companies, doctors and hospitals from some of the legal risks of providing unapproved drugs to patients. Doctors and hospitals would generally be protected unless they engaged in “reckless or willful misconduct” or “gross negligence,” or intentiona­lly harmed a patient.

The House passed a similar bill with more protection­s for patients in March, but the Senate never took it up. So the House decided on Tuesday to pass the Senate bill.

Several former commission­ers of the FDA and some clinical experts at the agency said the bill was unnecessar­y because patients with a serious illness could already obtain experiment­al medicines through a program known as expanded access or compassion­ate use.

The agency says it approves 99 percent of the requests it receives under this program, but in some cases, it recommends changes to protect patients before allowing the treatment to proceed.

Burgess said consumers had gained access in recent years to many innovative treatments. But, he said, “We continue to hear from patients with serious life-threatenin­g conditions who remain frustrated with what they see as regulatory barriers to trying new therapies when everything else has failed them.”

Rep. Frank Pallone Jr. of New Jersey, the senior Democrat on the Energy and Commerce Committee, said that reputable drug companies would not provide drugs to patients without the blessing of the FDA. But, he said, the bill opens the door for “a bad actor, some unscrupulo­us manufactur­er, a fly-bynight outfit to promote something like snake oil, whether the FDA approves it or not.”

Pallone said the bill’s definition of a life-threatenin­g disease could be stretched to allow access to experiment­al drugs for people with manageable conditions, like severe diabetes or chronic heart failure.

Scientists would need to complete the first phase of clinical research on a drug before it could be made available under the bill.

 ?? ASSOCIATED PRESS 2016 ?? Gavin Grimm, 19, sued the Gloucheste­r County School Board after it passed a policy requiring students to use restrooms aligned with their “biological gender.” A judge on Tuesday found the restrictio­ns violated the teen’s constituti­onal rights.
ASSOCIATED PRESS 2016 Gavin Grimm, 19, sued the Gloucheste­r County School Board after it passed a policy requiring students to use restrooms aligned with their “biological gender.” A judge on Tuesday found the restrictio­ns violated the teen’s constituti­onal rights.
 ?? AP ?? FDA Commission­er Dr. Scott Gottlieb said in a Twitter post: “When the House passes #RightToTry legislatio­n I stand ready to implement it in a way that achieves Congress’ intent to promote access and protect patients.”
AP FDA Commission­er Dr. Scott Gottlieb said in a Twitter post: “When the House passes #RightToTry legislatio­n I stand ready to implement it in a way that achieves Congress’ intent to promote access and protect patients.”

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