As the case of Gavin Grimm v. Gloucester County School Board heads for another round of oral arguments in the coming months, schools are tasked with the decision to either allow or bar transgender students from accessing bathrooms and facilities aligning with their gender identities.

While many schools have chosen to move forward with crafting policies for the former, some have opted to either wait for more guidance from the courts or lean toward barring transgender students from accessing facilities based on their gender-alignment altogether.

But the latter two options might not be in schools’ or students’ best interest.

What the courts say

While the U.S. Department of Education currently “isn’t enforcing” transgender students’ rights under Title IX, “trans folks can still sue, and can still win in court,” according to Mara Keisling, founder and executive director of the National Center for Transgender Equality​.

​And though the Trump administration reversed Obama-era guidance protecting transgender students’ rights to access bathrooms and facilities of their choosing, an overwhelming number of lower courts have actually decided in favor of transgender and nonbinary students.

“Right now, we can’t look for help from the federal government,” Keisling said. “But we’re winning in the courts.”

Attorneys agree.

An “overwhelming majority of lower courts” have found school districts barring students from using bathrooms or facilities aligning with their gender identity are violating the law, said Joshua Block, a senior staff attorney at the ACLU’s LGBT Project and the lead attorney on Grimm’s case​.

And if the consensus among lower courts continues, the U.S. Supreme Court may not even have a reason to take it on, Block said.

Attorneys suggest crafting and enforcing policies in favor of transgender students to avoid lawsuits. “If the school district wants to wait to get sued, it’ll have to pay litigation costs and pay attorney fee award,” Block said, pointing out it’s a “waste of taxpayer dollars.” But some districts want to “pass the buck,” he said, and “say that the courts forced them to do the right thing.”

While opponents sometimes claim transgender students using bathrooms they identify with violates the privacy of other students, that argument has never held up in court, and judges have immediately shot down lawsuits against school districts for allowing transgender students to use bathrooms aligning with their identities.

“Considering the federal court cases and state acts addressing human rights generally,” Brian Schwartz, an education lawyer serving as general counsel for the Illinois Principals Association, said, “the transgender student will need to be accommodated.”