Capping litigation that began in 2015, a three-judge panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit ruled by a vote of 2-1 on August 26 that the Gloucester County (Virginia) School Board violated the statutory and constitutional rights of Gavin Grimm, a transgender boy, when it denied him the use of boys’ restrooms at Gloucester County High School. Grimm v. Gloucester County School Board, 2020 U.S. App. LEXIS 27234, 2020 Westlaw 5034430.
This may sound like old news, especially since other federal appellate courts, most notably the Philadelphia-based 3rd Circuit, the Chicago-based 7th Circuit, the San Francisco-based 9th Circuit and the Atlanta-based 11th Circuit, have either ruled in favor of the rights of transgender students or rejected arguments against such equal access policies by protesting parents and cisgender students. But Grimm’s victory is particularly delicious because the Trump Administration intervened at a key point in the litigation to switch sides in the case after the Obama Administration had supported Grimm’s original lawsuit.
Grimm, identified as female at birth, claimed his male gender identity by the end of his freshman year, taking on a male name and dressing and grooming as male. Before his sophomore year, he and his mother spoke to the high school principal and secured agreement that he could use boys’ bathrooms, which he did for several weeks without incident. But as word spread that a transgender boy was using the facilities, parents became alarmed and deluged the school board with protests, leading to two stormy public meetings and a vote that transgender students in the district (of which Grimm was then the only known one) were restricted to using a single-occupant restroom in the nurse’s office or restrooms consistent with their “biological sex,” which the district defined as the sex identified at birth.
After Grimm filed his lawsuit represented by the American Civil Liberties Union (ACLU) seeking a court order to allow him to resume using the boys’ restrooms in his school, the Obama Administration weighed in with a letter to the court siding with Grimm’s argument that the school board’s policy violated Title IX of the Education Amendments of 1972, which bans sex discrimination against students. Despite this positive letter, the district judge granted the school board’s motion to dismiss the Title IX claim, reserving judgment on Grimm’s alternative claim under the Equal Protection Clause of the 14th Amendment.
Grimm appealed the dismissal. A three-judge panel of the 4th Circuit then ruled that the district court should have deferred to the Obama Administration’s interpretation of Title IX and not dismissed that claim. The school board sought review from the U.S. Supreme Court, which granted the petition and scheduled the case for argument in March 2017. The timing of this argument guaranteed that Grimm would never get to use the boys’ restrooms at the high school before graduating that spring.
After the Trump Administration took office in January 2017, the Justice and Education Departments announced that they were “withdrawing” the Obama Administration’s interpretation of Title IX. Without taking a formal position on the interpretive question, they criticized the Obama Administration as inadequately reasoned. But subsequently, Attorney General Jeff Sessions announced his disagreement with the Obama Administration’s interpretation of Title IX and more generally the prior administration’s position that transgender people are protected by all federal laws banning sex discrimination. In an October 2017 memorandum to all executive agencies, Sessions announced that laws banning sex discrimination apply only narrowly to a claim that an individual suffered discrimination because he was a biological male or she was a biological female, defined by how they were identified at birth.
Since the 4th Circuit had premised its reversal of the dismissal of Grimm’s Title IX claim on its conclusion that the district court should have deferred to the Obama Administration’s interpretation, the basis for that ruling was effectively gone. The Solicitor General formally notified the Supreme Court, which cancelled the scheduled hearing, vacated the 4th Circuit’s decision, and sent the case back to the District Court without any ruling by the Supreme Court. In the interim, the district court had responded to the 4th Circuit’s decision by issuing an injunction requiring the school board to let Grimm use the boys’ restrooms, but that was stayed while the appeal was pending in the Supreme Court and within months of the Supreme Court’s action of March 2017, Grimm had graduated from high school.
The Gloucester County School Board than urged the district court to dismiss the case as moot, since Grimm was no longer a student. Grimm insisted that the case should continue, because he should be entitled to seek damages for the discrimination he suffered and he wanted to be able to use the male facilities if he returned to the school as an alumnus to attend events there. The mootness battle raged for some time, the complaint was amended to reflect the new reality that Grimm was no longer a student, and a new issue emerged when Grimm requested that the school issue him an appropriate transcript in his male name identifying him as male, since he was stuck in the odd situation of being a boy with a high school transcript identifying him as a girl. By this time, he had gotten a court order approving his name change and a new birth certificate, but the school persisted in denying him a new transcript, raising frivolous arguments about the validity of the new birth certificate.
Thus repurposed, the case went forward. Ultimately the district court ruled in Grimm’s favor on both his statutory and constitutional claims, but the school board was not willing to settle the case, appealing again to the 4th Circuit. The August 26, 2020, ruling is the result.
The ACLU publicized this case heavily from the beginning, winning national media attention and an army of amicus parties filing briefs in support of Grimm’s claim along the away. On May 26, 2020, the case was argued in the 4th Circuit before a panel of two Obama appointees, Judge Henry Floyd and Judge James A. Wynn, Jr., and an elderly George H.W. Bush appointee, Judge Paul Niemeyer (who had dissented from the original 4th Circuit ruling in this case). In light of the rulings by other courts of appeals on transgender student cases and the Supreme Court’s decision in Bostock v. Clayton County, Georgia, on June 25, 2020, holding that discrimination because of transgender status is discrimination “because of sex” under Title VII of the Civil Rights Act, the result in this new ruling was foreordained.
Judge Floyd’s opinion for the panel, and Judge Wynn’s concurring opinion, both go deeply into the factual and legal issues in the case, constituting a sweeping endorsement of the right of transgender students to equal treatment in schools that receive federal funding, a prerequisite for coverage under Title IX. Furthermore, public schools are bound by the Equal Protection Clause, and the court’s ruling on the constitutional claim was just as sweeping.
The court first rejected the school board’s argument that the case was moot, with Grimm having graduated and now being enrolled in college. Since damages are available for a violation of Title IX, it was irrelevant that Grimm was no longer a student. He had been barred from using the boys’ restrooms for most of his sophomore and all of his junior and senior years. Even though the district court granted him only nominal damages, his claim for damages made this a live controversy, as did the school’s continuing refusal to issue him a proper transcript, which the court held was also illegal.
Turning to the merits, Judge Floyd first tackled the Equal Protection claim. The court rejected the School Board’s argument that there was no discrimination against Grimm because he was not “similarly situated” to cisgender boys. Judges Floyd and Wynn firmly asserted that Grimm is a boy entitled to be treated as a boy, regardless of his sex as identified at birth. This judicial endorsement of the reality of gender identity is strongly set forth in both opinions.
Judge Niemeyer’s dissent rests on a Title IX regulation, which Grimm did not challenge, providing that schools could maintain separate single-sex facilities for male and female students, and the judge’s rejection that Grimm is male for purposes of this regulation. Niemeyer insisted that Title IX only prohibits discrimination because of “biological sex” (a term with the statute does not use). As far as he was concerned, the school did all that the statute required it to do when it authorized Grimm to use the nurse’s restroom or the girls’ restrooms. But the majority of the panel accepted Grimm’s argument that the school’s policy subjected him to discriminatory stigma, as well as imposing physical disadvantages. As a boy, he would not be welcome in the girls’ restroom, and the nurse’s restroom was too far from the classrooms for a break between classes. As a result, he generally avoided using the restroom at school, leaving to awkward situations and urinary tract infections.
As the case unfolded, the school constructed additional single-user restrooms open to all students regardless of sex and made some modifications to the existing restrooms to increase the privacy of users, but the single-user restrooms were not conveniently located and cisgender students did not use them, reinforcing the stigma Grimm experienced. Stigma due to discrimination has long been recognized by the federal courts as the basis for a constitutional equal protection claim.
The school’s actions undermined Judge Niemeyer’s argument that the school board policy was justified by the need to protect the privacy of cisgender students, an argument that has been specifically rejected by the 3rd and 9th Circuit cases when they rejected cases brought by parents and cisgender students challenging school policies that allowed transgender students to use appropriate restrooms. Judge Niemeyer colorfully wrote, “we want to be alone — to have our privacy — when we ‘shit, shower, shave, shampoo, and shine.’” (Do high school buys shave in the boys’ room as a general practice?) But the panel smajority was not persuaded that it was necessary to exclude Grimm from the boys’ restrooms to achieve this goal. After all, the only way Grimm as a transgender boy could relieve himself was by using an enclosed stall, lacking the physical equipment to use a urinal, so he would not be disrobing in front of the other students. (Let’s be real here.)
Judge Floyd’s opinion did not rely on the Bostock ruling for its constitutional analysis, instead noting that many circuit courts of appeals have accepted the argument that government policies discriminating because of gender identity are subject to heightened scrutiny, and are thus presumptively unconstitutional unless they substantially advance an important state interest. The majority, contrary to judge Floyd, did not think that excluding Grimm advanced an important state interest, especially after the School Board had altered the restrooms to afford more privacy, an obvious solution to any privacy issue.
Turning to the statutory claim, Judge Floyd pointed out that judicial interpretation of Title IX has always been informed by the Supreme Court’s Title VII rulings on sex discrimination, so the Bostock decision carried heavy precedential weight and the school board’s arguments on the constitutional claim were no more successful on this claim. The School Board lacked a sufficient justification under Title IX to impose unequal access to school facilities on Grimm.
At this point, the Gloucester County School Board can read the writing on the wall and concede defeat, or it can petition the 4th Circuit for en banc review (review by the full 15-judge bench of the circuit court), or it can seek Supreme Court review a second time. As to the en banc situation, the 4th Circuit is one of the few remaining federal circuit courts with a majority of Democratic appointees, as several of Bill Clinton’s appointees are still serving as active judges and all six of Obama’s appointees are still serving, leaving a majority of Democratic appointees on the full bench, so seeking en banc review, which requires that a majority of the active judges vote to review the case, would be a long shot.
On the other hand, Justice Neil Gorsuch’s decision for the Supreme Court in Bostock refrained from deciding – since it wasn’t an issue in that case – whether excluding transgender people from restroom facilities violates sex discrimination laws, and this case would provide a vehicle for addressing that issue. It takes only four votes on the Supreme Court to grant review of a lower court case, so there may be another chapter in the saga of Grimm’s legal battle. It is also possible that the St. Johns County School District in Florida, which lost in the 11th Circuit in a virtually identical ruling, might also seek Supreme Court review, so one way or another, this issue may yet get on to the Court’s Docket this term or next.
ACLU attorney Joshua Block has been representing Grimm throughout the struggle, but the case was argued in May by cooperating attorney David Patrick Corrigan, a litigation specialist at the Richmond firm of Harman Clayton Corrigan & Wellman. A local Richmond firm represented the School Board, confronting Virginia Attorney General Mark Herring supporting Grimm with an amicus brief. The overwhelming majority of amicus briefs filed, many by state attorneys general, sided with Grimm.