May 26 (UPI) -- A federal appeals court heard arguments Tuesday in the case of a transgender man who sued his former high school in Virginia over restroom access.
The hearing was the latest in a five-year court battle in which Gavin Grimm, 21, sued the Gloucester County School Board after it passed a rule requiring students to use only the bathroom of the gender with which they were born.
In August, a federal judge ruled in favor of Grimm, but the school board appealed the case to the 4th U.S. Circuit Court of Appeals. The three-judge panel heard arguments Tuesday in which the school board said the creation of a third, non-gendered bathroom should sufficiently accommodate transgendered students' needs.
Grimm and his lawyers with the American Civil Liberties Union, though, said the school's policy violates Title IX and 14th Amendment protections.
Circuit Judge James Wynn Jr., an appointee of former President Barack Obama, suggested the school board's creation of a third bathroom option amounted to segregation.
"You've established a class of people like Grimm. It's separate but equal," he said. "Like one of the black schools. I actually know cause I want to a few.
"So it's nice to say they can go to the other school but nobody ever does that."
Wynn said the use of a third bathroom was "stigmatizing" to students such as Grimm.
Circuit Judge Paul Niemeyer, an appointee of former President George H.W. Bush, though, said Title IX -- which forbids organizations that receive federal funds from discriminating against people on the basis of sex -- does allow the discrimination of sexes in bathrooms.
"The reason is he doesn't qualify as a boy, he qualifies mentally, but there is a distinction because of his physical make up," Niemeyer said. "There was nothing in the record that Congress, when they enacted it, they were thinking about transgender persons."
He suggested it was better to Congress to handle the matter.
A timeline for a ruling from the 4th Circuit was unclear.