The state Attorney General’s Office is asking the nation’s highest course to reverse a decision allowing a transgender student to use the bathroom of his choice. (File/Mint Images/Getty Images)
COLUMBIA — South Carolina’s attorney general has asked the nation’s highest court to ban a transgender ninth grader from using the bathroom of his choice at school.
The request filed Thursday follows a ruling from the 4th Circuit Court of Appeals in mid-August that the student, identified in court documents as John Doe, could use the boys’ bathroom while the case proceeded.
A clause in the state budget, originally passed last year, threatens to revoke state funding from any school that allows transgender students to use multi-stall bathrooms and locker rooms aligned with their gender identity.
The court’s ruling applied only to the student who filed the lawsuit, overturning a federal judge’s earlier decision that kept him from using the boys’ bathroom.
“Doe is a 14-year-old student who simply wishes to use the restroom,” Circuit Judge Albert Diaz wrote Aug. 15 in an opinion explaining the appeals court order several days earlier. “Doing so is a biological necessity. Doing so in restrooms that match his gender identity is his right under our precedent.”
The student withdrew from middle school last September after administrators suspended him for defying them and continuing to use the boys’ bathroom, according to legal filings. He started ninth grade in Berkeley County this month, one day after the appeals court’s decision that he could use the bathroom of his choice.
That was the wrong decision, attorneys for the state attorney general’s office and Department of Education claimed in a request to the U.S. Supreme Court.
Legislators wanted to protect other students who might be using the restroom alongside a transgender student, Solicitor General Thomas Hydrick wrote in the filing.
He questioned what a district should say to a transgender student but doesn’t appear to be transitioning in any way. That student might make other students using the bathroom feel uncomfortable, Hydrick wrote.
The budget clause doesn’t keep transgender students from using a single-stall bathroom. Hydrick said that’s a better choice for students experiencing gender dysphoria, who might be more vulnerable to bullying from their peers.
“What about the rights and safety of all students?” Attorney General Alan Wilson said in a statement. “Where does it stop?”
The school district is “now stuck between an impossible rock and hard place,” the request reads.
The district must choose between following instructions from the Trump administration requiring children use the bathroom aligned with their gender at birth or the appeals court’s decision, Hydrick wrote.
He argued the appeals court judges should have based their ruling on a decision earlier this year upholding Tennessee’s ban on gender transition procedures for minors.
Instead, they relied on a 2014 ruling by another appeals court that a transgender boy in Virginia had the right to use the boys’ bathroom.
Even appeals court judges reluctant to side with the student decided they must because the Virginia ruling was so clear, Circuit Judge G. Steven Agee wrote about the Aug. 12 decision.
Since the student won’t use the girls’ restroom, he didn’t use the bathroom at all after administrators banned him from the boys’ restroom, according to legal filings.
“To bar him from boys’ restrooms for most of his waking hours is to demean him, day-in and day-out, with no end in sight,” Diaz wrote. “Denying relief in these circumstances would subject Doe to humiliation by a thousand cuts.”
Diaz rejected the idea that allowing the student to use the restroom of his choice would harm other students, a key part of deciding whether to intervene in a case ahead of a decision. No students at the boy’s middle school had complained about which bathroom he used, according to legal filings.
“Doe is a teenager who, during the sturm und drang typical of adolescence, has grappled with extraordinarily complex questions of identity,” Diaz wrote, using a German expression that means “storm and stress.”
“Rather than support Doe, South Carolina has denigrated him, and every other transgender person besides,” he wrote.