A Mary­land

Bar­ring of Md. stu­dent from boys’ locker room is called dis­crim­i­na­tory

The Washington Post - - FRONT PAGE - BY ANN E. MARIMOW

school’s bar­ring of a trans­gen­der stu­dent from us­ing the boys’ locker room is dis­crim­i­na­tory, a fed­eral judge ruled.

A Mary­land high school’s pol­icy blocking a trans­gen­der stu­dent from us­ing the boys’ locker room sin­gles him out for dis­crim­i­na­tion and “harms his health and well-be­ing,” a fed­eral judge in Bal­ti­more has ruled.

Max Bren­nan, a trans­gen­der teen from the East­ern Shore, was re­quired to use a sep­a­rate, gen­der-neu­tral re­stroom to dress for gym class, mak­ing him choose at times be­tween be­ing late or be­ing pe­nal­ized for not chang­ing.

U.S. District Judge Ge­orge L. Rus­sell III is the lat­est judge, and the first in Mary­land, to find that the right of a trans­gen­der stu­dent to use re­strooms and locker rooms match­ing his or her gen­der iden­tity is pro­tected by fed­eral and state law.

The pol­icy bar­ring Bren­nan from the boys’ locker room “does not ap­ply to any­one else at the high school, and marks him as dif­fer­ent for be­ing trans­gen­der,” the judge wrote in a 40-page opin­ion is­sued this week that al­lows Bren­nan’s law­suit to move for­ward.

In a state­ment, Bren­nan, a 15-year-old who at­tends St. Michaels Mid­dle High School, called the de­ci­sion a “great step in the right di­rec­tion.”

The de­ci­sion comes af­ter the Trump ad­min­is­tra­tion last year aban­doned Obama ad­min­is­tra­tion guide­lines that di­rected pub­lic schools to ac­com­mo­date trans-

gen­der stu­dents. The Supreme Court last March put off rul­ing in the sep­a­rate case of Vir­ginia trans­gen­der teen Gavin Grimm, de­lay­ing a de­ci­sion about whether fed­eral laws for­bid­ding dis­crim­i­na­tion on the ba­sis of sex also ex­tend to gen­der iden­tity.

In his opin­ion, pub­lished Mon­day, Rus­sell said that in ad­di­tion to the Equal Pro­tec­tion Clause of the U.S. Con­sti­tu­tion, Mary­land’s con­sti­tu­tion pro­hibits pub­lic schools from ex­clud­ing trans­gen­der stu­dents from us­ing the same fa­cil­i­ties as their non-trans­gen­der class­mates.

“I am hope­ful that this case will not only help change pol­icy for the bet­ter but help the stu­dents who are bound to come af­ter me,” Bren­nan said.

His at­tor­ney, Jen­nifer Kent of FreeS­tate Jus­tice, said, “School sys­tems in Mary­land should know the law and should be pro­tect­ing stu­dents who are trans­gen­der from dis­crim­i­na­tion, not sin­gling them out for sep­a­rate and un­equal treat­ment.”

Deb­bie Gard­ner, a spokes­woman for the Tal­bot County Pub­lic Schools, the district to which St. Michaels be­longs, said she could not com­ment be­cause of the lit­i­ga­tion.

In Vir­ginia, the case of for­mer Glouces­ter High school stu­dent Gavin Grimm is pend­ing. The Rich­mond-based U.S. Court of Ap­peals for the 4th Cir­cuit had de­ferred to guid­ance is­sued by the Obama ad­min­is­tra­tion and over­ruled the Glouces­ter County School Board’s pol­icy that stu­dents must use re­strooms that cor­re­spond with their “bi­o­log­i­cal sex.” Af­ter the Supreme Court put off rul­ing, the 4th Cir­cuit sent Grimm’s case back to a lower court in part to de­ter­mine whether Grimm — who has since grad­u­ated — has enough of a tie to his alma mater to pur­sue the case.

Ini­tially, Bren­nan’s school re­quired him to use one of three “gen­der neu­tral” re­strooms. Af­ter the 4th Cir­cuit rul­ing, the school al­lowed him to use the boys’ re­strooms but pre­vented him from us­ing the boys’ locker rooms. The des­ig­nated re­stroom was far away from the locker room, ac­cord­ing to court fil­ings, mak­ing Bren­nan late for class if he wanted to change to gym clothes.

At­tor­neys for the school board said the pol­icy does not vi­o­late the Equal Pro­tec­tion Clause be­cause it treated Bren­nan like ev­ery other stu­dent, re­quir­ing him to use the locker room of his birth sex. The school sys­tem also raised con­cerns about the pri­vacy of other stu­dents chang­ing in the locker room with Bren­nan.

Rus­sell dis­agreed. The judge cited Bren­nan’s as­ser­tion the locker rooms have in­di­vid­ual stalls for chang­ing and for toi­lets.

Bren­nan has had to dis­close his trans­gen­der sta­tus to sub­sti­tute teach­ers to avoid be­ing pe­nal­ized for ar­riv­ing late to gym class, and his grade suf­fered when he did not change clothes for gym class be­cause he “did not want to deal with the ‘stigma and im­prac­ti­cal­ity’ of chang­ing in the des­ig­nated re­stroom,” Rus­sell wrote.

In the rul­ing, Rus­sell noted that the courts have had to step in to stop en­force­ment of fed­eral poli­cies that vi­o­late the rights of trans­gen­der peo­ple.

He pointed to a re­cent de­ci­sion by a fel­low Bal­ti­more judge who barred the Trump ad­min­is­tra­tion from en­act­ing a pro­posed ban on mil­i­tary ser­vice by trans­gen­der men and women.

The judge de­nied Bren­nan’s re­quest to im­me­di­ately block en­force­ment of his school’s pol­icy be­fore the broader case is re­solved. Bren­nan is not en­rolled in gym class for the cur­rent school year, and the judge said that for that rea­son, no harm from the pol­icy is “im­mi­nent.”

“I am hope­ful that this case will not only help change pol­icy for the bet­ter but help the stu­dents who are bound to come af­ter me.” Max Bren­nan, 15

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