The infamous “bathroom bills”—passed and partially repealed in North Carolina, and proposed in more than a dozen other states—were also birth-certificate based; they would make binding for life the assignment of sex performed at birth. In Whitaker v. Kenosha Unified School District, decided last year by the U.S. Seventh Circuit Court of Appeals, Ash Whitaker, a transgender boy, was denied permission to use the boys’ bathroom despite two letters from his physician. At oral argument, the district argued instead that it would only accept “a birth certificate that designated his sex as male.” The appeals court, holding for Ash, noted the “arbitrary nature” of reliance on birth certificates.
Gavin Grimm v. Gloucester County School Board was decided last month by the Fourth Circuit; Grimm, a transgender boy, was blocked from use of the boys’ room after parent complaints. Even when a Virginia court granted him an amended birth certificate, the school board would not budge, saying that his “biological gender” was still female. “The board’s argument,” the appeals court wrote, “rings hollow.”