Supreme Court decision may not end transgender bathroom ban efforts in Kentucky

While groups supporting transgender rights are celebrating a U.S. Supreme Court decision on bathrooms for transgender students, the polarizing issue might not be resolved in Kentucky.

On Monday, the Supreme Court said it would not hear an appeal from the Gloucester County, Va., school board in a case that began six years ago, when Gavin Grimm, a transgender high school student, then 15, filed a lawsuit because of a policy that prohibited Grimm from using the boys’ bathroom.

Lower courts ruled that the school board’s policy requiring students to use the bathroom corresponding to their biological sex or go to a private bathroom violates the Equal Protection Clause of the Constitution and Title IX, the federal civil rights law that prohibits schools that receive federal funding from discriminating based on sex. By choosing not to hear the case, the Supreme Court left in place the rulings in the student’s favor.

“I do think it ends the debate,” said Chris Hartman, executive director of the Kentucky Fairness Campaign.

“We won a significant victory for transgender rights when the Supreme Court declined to hear this case,” said Jackie McGranahan, policy strategist for the ACLU of Kentucky.

But that might not mean the bathroom issue won’t come up again, and more bills addressing LGBTQ — and particularly transgender — rights are being filed than ever in Kentucky.

Hartman said there were “seven anti-LGBTQ bills” filed in Frankfort during the last legislative session, “the most we’ve ever fought,” though he noted that bipartisan support for the LGBTQ community is growing.

The ruling by the lower court in Grimm’s case is binding in Maryland, North Carolina, South Carolina, Virginia and West Virginia, an attorney for Lambda Legal, which advocates for LGBT rights, told the Associated Press.

In Kentucky, the question of which bathrooms transgender students should be allowed to use is handled by individual school districts. Bills seeking to set up a statewide policy similar to the Virginia district’s have been filed in the state legislature multiple times.

In 2015, Kentucky was the first state in the nation, Hartman said, to introduce legislation that addressed which bathroom transgender students could use. Though that measure passed the Senate, it did not make it through the full legislature.

Since then, similar bills have been introduced periodically, though they have not gained much traction.

“You probably will see this again,” said Martin Cothran, spokesman for The Family Foundation.

Cothran said having a statewide policy would be a matter of “convenience” for school districts.

“There’s a lot of districts who would rather not have to deal with it and have some guidelines that they can all follow,” he said. “It settles the matter.”

If students are transgender, “I don’t know why anyone knows about it in the first place unless you’re going to make a big deal about it,” he said. “Why are we doing that?”

“The other issue is safety,” he said. “I don’t know in what world sending a biological girl into a boys’ bathroom improves safety or vice versa.”

He said unisex bathrooms could be made available to students who are transgender.

But McGranahan said policies like that are “degrading and stigmatizing” to transgender students.

“Everyone has the right to be themselves at school,” she said.

McGranahan said much of the talk about bathrooms quieted down after a huge backlash and boycotts in North Carolina, which passed and repealed a bill that kept transgender people from using certain bathrooms.

Republican Rep. David Hale, who has sponsored some of the bathroom legislation in past years, said he hasn’t decided whether to file a similar bill again.

“I’m still considering it,” he said, adding that the bills “were never meant to be a discrimination against anybody.”

Hale, who represents Menifee, Montgomery and Powell counties, has filed the bathroom bill in the state legislature at least twice before, most recently in 2020, seeking to require students to use the bathrooms and locker rooms that correspond to their sex at birth. Under the legislation, school districts could provide transgender students with “single-stall restrooms, access to unisex bathrooms, or controlled use of faculty bathrooms, locker rooms, or shower rooms.”

Hale said, “many parents are very uncomfortable about the possibility” that transgender students could be using the same restrooms as their children of the opposite anatomical sex.

“I know there have been some school boards that have had to address this situation over the last few years,” he said. “They’ve addressed it in different ways.”

Cothran said he thinks prior attempts to pass bathroom bills didn’t get much traction because legislators “just didn’t think it was something imminent here, and I think that situation is changing..”

If he does file the legislation again, Hale said he may combine it with legislation addressing school sports and transgender athletes.

The question of whether transgender students should be able to play sports in accordance with their gender identity seems to be where the discussion has shifted in Kentucky and nationwide.

McGranahan said bills targeting transgender athletes were filed in 20 states in 2020, and they became law in Tennessee and West Virginia.

“It’s especially heinous because this is involving children,” she said.

A bill has been pre-filed for Kentucky’s 2022 legislative session that would prevent transgender girls and women from participating in girls or women’s sports in Kentucky public schools and post-secondary schools that are members of a national intercollegiate athletic association.

Rep. Ryan Dotson, a Winchester Republican, pre-filed the “Fairness in Women’s Sports Act” earlier this month. He said the goal was to prevent transgender women from having an unfair advantage in women’s sports.

Hartman, however, said those kinds of bills are “another attempt to use transgender youth as political pawns.” He said transgender kids already struggle with high rates of attempted suicide, and such bills instill “fear in the community.”