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COLUMBIA — A transgender middle school student is suing South Carolina in an effort to block a rule requiring students to use bathrooms that match their biological sex at birth.
The rule, which also applies to locker rooms and gym showers, went into effect in July as part of the state’s spending package. The budget clause does not outright ban transgender students from using the bathroom of their choice. Instead, it threatens to revoke a quarter of a district’s funding for not enforcing it.
The Berkeley County student, who goes by John Doe in the lawsuit, was told by school administrators that he must use the girls’ bathroom or a private nurse’s bathroom. Not seeing either of those as feasible options, and facing bullying from his peers, the student switched to an online program, according to the federal lawsuit filed last week in Charleston.
His case is led by the national nonprofit Public Justice. Joe Wardenski, a New York-based attorney hired for the case, has argued similar lawsuits in other states, including a successful challenge to a school policy in Wisconsin.
Attorneys are asking a federal judge to temporarily halt the law while the case proceeds, as well as allow the unnamed student to act as a stand-in for all transgender students in the state, according to court filings.
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As part of the budget, the rule is technically a one-year law, though directives attached to the state spending package usually roll over from one year to the next indefinitely.
It’s unclear whether any school district has lost funding or even received a warning over the rule. The state Department of Education did not respond Monday to the Gazette’s questions about it.
Legislators knew the clause would likely face legal challenges. The probability was part of the floor debate before senators voted 30-7 in April to add it to the budget package.
A similar case from Virginia had already been decided in the student’s favor.
In 2020, the Fourth Circuit Court of Appeals — the same circuit that would hear an appeal from South Carolina — upheld a lower court’s ruling to let a transgender student use the bathroom and locker room of his choice. A year later, the U.S. Supreme Court declined to hear the case, allowing the decision to stand.
Similar rules in other states have been challenged with varying results. Sen. Wes Climer of Rock Hill, who proposed the clause, told the Gazette in April he thinks the nation’s high court would take a future case to settle the matter.
The South Carolina clause also directly contradicts new Title IX rules released by the Biden administration just days before the Senate vote. Those federal regulations, which were supposed to take effect Aug. 1, have been blocked in half of states, including South Carolina. The U.S. Supreme Court declined to enforce the rule pending a final ruling.
South Carolina’s attorneys have not yet filed a response to the lawsuit. The Berkeley County School District did not respond Monday to requests for comment.
The lawsuit’s claims
According to the lawsuit, an assistant principal at Cane Bay Middle School in Summerville told the student in August that he needed to use the girls’ restrooms or the single-stall bathroom in the nurse’s office. The nurse’s office is significantly further away from the student’s classes, meaning he would have had to miss class time to use it, the lawsuit alleges.
It said using the girls’ bathroom wasn’t an option. Not only would the student be upset about using the girls’ bathroom, but he might upset other students because he looked masculine, the lawsuit claimed. No student had complained about the middle schooler using the boys’ bathroom, it continued.
The student ignored the assistant principal’s warning and continued using the boys’ bathrooms. He received a daylong suspension, with the threat of expulsion if he kept disobeying the policy, the lawsuit reads.
When he returned from his suspension, the student’s teachers monitored which bathroom he used. If he tried to use the boys’ bathroom, teachers intervened. The student opted instead to not use the bathroom during the school day, making him both physically and emotionally uncomfortable, according to the lawsuit.
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Other students began harassing the 13-year-old because he was transgender, taunting him over which restroom he was allowed to use, according to court filings.
“I was so upset by the harassment and invasive monitoring of my restroom use at school that, sometimes, I could not even go to school,” the student said in a signed statement submitted along with the lawsuit.
In September, about a month after the student was first told to use the girls’ bathroom, his parents removed him from the school and enrolled him in an online education program.
“He is socially isolated and academically disengaged,” the student’s father, also anonymous to protect his son’s identity, wrote in a signed statement. “I am afraid that (my son), who is very smart and has been a strong student, may fail his online classes.”
The boy’s story is emblematic of an issue affecting transgender students across the state, attorneys wrote. As many as 3,700 South Carolinians ages 13 to 17 are transgender, according to a 2022 study by University of California, Los Angeles researchers.
Not allowing those students to use the bathroom of their choice violates their constitutional right to equal protection, along with other federal laws prohibiting discrimination, the lawsuit argues.
Transgender students who must use a bathroom that doesn’t align with their gender identity are more likely to experience emotional distress than their peers, attorneys wrote.
“Although many transgender individuals report negative consequences when they are restricted from using restrooms consistent with their identity, this exclusion may be particularly damaging during adolescence,” wrote psychologist Stephanie Budge in a signed statement submitted with the lawsuit.
Some students instead avoid using public bathrooms at all, even going so far as to avoid drinking liquids so they don’t need to use the restroom as often, Budge’s statement continued. That can cause medical issues, such as urinary tract infections, she wrote.
Potential pause in lawsuit over medical care
A different case challenging a law affecting transgender youth could soon be on pause pending a U.S. Supreme Court decision, a federal judge said in an order last Thursday.
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That lawsuit filed by the American Civil Liberties Union seeks to block a state law meant to bar health care providers from providing puberty blockers or gender-transitioning hormone therapy to transgender youth under the age of 18.
While GOP legislators said their intention was to ban treatments for children, the law signed in May included a line prohibiting the use of public funds “directly or indirectly for gender transition procedures.” Pointing to that line, the Medical University of South Carolina began phasing out all gender-transition care by Jan. 31.
U.S. District Judge Richard Gergel is “actively considering” halting the case, he wrote.
The U.S. Supreme Court is scheduled to hear arguments Dec. 4 on a challenge to a similar law in Tennessee, which bans hormone treatments for transgender children under 18. An appeals court upheld the law, reversing a lower court’s decision.
The American Civil Liberties Union and the state Attorney General’s Office have until the first week of December to file their arguments on whether the South Carolina case should continue while the nation’s high court makes its decision, a process that usually takes months, Gergel wrote.