SC AG Wilson files brief in transgender restroom case

South Carolina Attorney General Alan Wilson has filed a brief along with officials in five other states that challenges the Obama administration in a lawsuit over whether local school districts must permit transgender students to use the restroom of their choice.

The brief, which Wilson filed Monday in the U.S. Fourth Circuit Court of Appeals, challenges the federal interpretation of its Title IX requirements that says schools would violate federal law if they prevent transgender students from using the restroom that corresponds with their gender identity.

Wilson was joined in the amicus, or "friend of the court," brief by the attorneys general of Arizona, Mississippi and West Virginia, Maine Gov. Paul LePage and North Carolina Gov. Pat McCrory.

The lawsuit involves a transgender teen, Gavin Grimm, who was born a female but now identifies as a male and sued his school district in Virginia for the right to use the boys restroom.

Grimm had been using the boys restroom until some parents found out and complained and the Gloucester County School Board voted to limit students’ use of restrooms to either a single-stall restroom or the restroom of their birth sex.

The American Civil Liberties Union sued in Grimm’s defense in June and a federal judge sided with the school board in September. The case now rests in the 4th Circuit, where the Obama administration has filed a “friend of the court” brief that argues that preventing transgender students from using the restroom of the gender they identify as constitutes sexual discrimination.

In its brief, the six state officials say:

“This Court should hesitate long before becoming the first court ever, anywhere in the United States, to force schools to admit adolescent biological females into boys’ bathrooms and locker rooms, and adolescent biological males into girls’ bathrooms and locker rooms. If such a social revolution is to be wrought, it must come from the democratically elected legislature, not the courts or the executive.”

Wilson’s brief argues that the school district’s policy doesn’t violate Title IX sexual discrimination language and that the Obama administration incorrectly broadened the definition of a person’s biological sex to their gender identity.

“Sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity,” according to the brief.

The brief also argues that courts must provide a clear statement of requirements because federal education funding is tied to compliance with Title IX. If the government wants to tie funding to compliance with transgender access to their choice of restrooms, it must provide ample notice to states so they can choose whether or not to accept funding.

The brief also argues against Grimm’s claim of sexual discrimination based on equal protection under the 14th Amendment. It refers to the 1996 case where the Supreme Court struck down the exclusion of women from the Virginia Military Academy, “the Supreme Court preserved room for treating the sexes differently where warranted by biology.”

Read the entire brief here.