Opening up a new chapter in the continuing battle of Gavin Grimm to vindicate his rights as a transgender man, U.S. District Judge Arenda L. Wright Allen issued an Order on May 22 denying the Gloucester County (Virginia) School Board’s motion to dismiss the latest version of the case Grimm filed back in July 2015, prior to his sophomore year at Gloucester High School.
During the summer of 2014, Grimm’s transition had progressed to the point where he and his mother met with high school officials to tell them that he was a transgender boy and “would be attending school as a boy,” wrote Judge Allen. They agreed to treat him as a boy, including allowing him to use the boys’ restrooms. He did so for about seven weeks without any incident, until complaints by some parents led the school board to adopt a formal policy prohibiting Grimm from using the boys’ restrooms. The school established some single-user restrooms that were theoretically open to all students, but Grimm was the only one who used them because they were not conveniently located to classrooms.
“Because using the single-user restrooms underscored his exclusion and left him physically isolated,” wrote Judge Allen, “Mr. Grimm refrained from using any restroom at school. He developed a painful urinary tract infection and had difficulty concentrating in class because of his physical discomfort.” During the summer after his sophomore year, he filed his lawsuit, alleging violations of Title IX – a federal statute that forbids schools from discriminating because of sex – and the Equal Protection Clause of the Constitution.
Meanwhile, Grimm had begun hormone therapy in December 2014, “which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.” In June 2015, he received a new Virginia identification car from the Motor Vehicles Department designated him as male. During the summer of 2016, he had chest-reconstruction surgery, a necessary step to get the circuit court to issue an order changing his sex under Virginia law and directing the Health Department to issue him a birth certificate listing him as male. He received the new birth certificate in October 2016. Thus, as of that date, Grimm was male as a matter of Virginia law.
Yet, despite all these physical and legal changes, the School District clung to its contention that his “biological gender” was female and that he could not be allowed to use boys’ restrooms at the high school. The school maintained this prohibition through the end of the school year, when Grimm graduated.
Meanwhile, his lawsuit was not standing still. Senior U.S. District Judge Robert G. Doumar dismissed his Title IX claim in September 2015, denying his motion for a preliminary injunction, and holding his Equal Protection Claim in reserve while he appealed to the U.S. Court of Appeals for the 4th Circuit, based in Richmond. In the spring of 2016, the 4th Circuit sent the case back to the district court, issuing an opinion holding that the court should have deferred to the position advanced by the U.S. Departments of Education and Justice, which opined that discrimination because of gender identity is sex discrimination and schools are required under Title IX to treat student consistent with their gender identity.
Judge Doumar then issued a preliminary injunction during the summer of 2016 ordering the School District to let Grimm use the boys’ restrooms, but the School District obtained a stay of that order from the Supreme Court, which subsequently granted the School’s petition to review the 4th Circuit’s “deference” ruling. The Supreme Court scheduled the case for argument, but then the incoming Trump Administration “withdrew” the position that the Obama Administration had taken, knocking the props out from under the 4th Circuit “deference” ruling, and persuaded the Supreme Court to cancel the argument and send the case back to the 4th Circuit, which in turn sent it back to the district court. And, by the time it got there, Grimm had graduated from Gloucester County High School.
The School District attempted to get rid of the case at that point, arguing that it was moot. Grimm begged to differ, arguing that his Title IX and Equal Protection rights had been continuously violated by the School District from the time it adopted its exclusionary restroom policy through the time of his graduation. In a newly amended complaint, Grimm sought a declaratory judgement as to the violation of his rights under both Title IX and the constitution and an end to the school’s exclusionary policy.
The School District moved to dismiss this new complaint, leading to the May 22 ruling by Judge Allen, to whom the case had been reassigned in the interim. Judge Doumar, who was born in 1930, was appointed to the court by President Reagan and is still serving as a part-time senior district judge. Judge Allen was appointed to the court by President Obama in 2011.
Judge Allen’s opinion relies heavily on important judicial developments that have occurred since Judge Doumar’s initial dismissal of the Title IX claim back in 2015. The 4th Circuit has yet to issue a ruling on the merits of the question whether federal laws that forbid discrimination because of sex can be construed to apply to gender identity discrimination claims. Since the Supreme Court has also avoided addressing that issue, it was open to Judge Allen to follow as “persuasive precedents” the lengthening list of rulings from other federal courts, including five different circuit courts of appeals and many district courts, holding that sex discrimination laws should be broadly construed to cover gender identity claims.
These decisions draw their authority from two important Supreme Court decision: Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner Offshore Services (1998). In Price Waterhouse, the Supreme Court accepted as evidence of intentional sex discrimination an accounting firm’s denial of a partnership to a woman who was deemed inadequately feminine by several partners who voted against her. In Oncale, the Court ruled that Title VII, the federal law banning employment discrimination because of sex, could apply to a claim of hostile environment sexual harassment by a man who worked in an all-male workplace, commenting that even if this scenario was not contemplated by Congress when it passed Title VII in 1964, that statute could be applied to “comparable” situations.
Since the turn of the century, federal appeals courts have used those two cases to find that transgender people can seek relief from discrimination under the Gender-Motivated Violence Act, the Equal Credit Opportunity Act, Title VII of the Civil Rights Act, Title IX of the Education Amendments Act, and the Equal Protection Clause. In addition, district courts have found such protection under the Fair Housing Act. A consensus based on the gender stereotype theory has emerged, even in circuits that have generally been hostile to sexual minority discrimination claims. And, most significantly, the 7th Circuit ruled last year in the case of Ashton Whitaker, a transgender boy, that Title IX and the Equal Protection Clause required a school district to allow him to use boys’ restroom and locker room facilities. There is no material distinction between the Whitaker and Grimm cases.
Furthermore, and closer to home, on March 12 of this year U.S. District Judge George L. Russell, III, ruled in a case from Maryland (also in the 4th Circuit) that a school district had violated Title IX and the Equal Protection Clause by refusing to allow a transgender boy to use the boys’ locker room at his high school. Judge Allen found Judge Russell’s analysis persuasive, as she did the recent cases from other courts.
Turning to Grimm’s constitutional claim, Judge Allen followed the precedents from other courts that have determined that discrimination against transgender people is subject to “heightened scrutiny” judicial review, similar to that used for sex discrimination cases. Under this standard, the challenged policy is presumed to be unconstitutional and the government bears the burden of showing that it substantially advances an important governmental interest.
The Gloucester School District argued that its interest in protecting the privacy of other students was sufficient to vindicate its policy, but Judge Allen disagreed, finding that “the policy at issue was not substantially related to protecting other students’ privacy rights. There were many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms.” The school had created three single-user restrooms open to all students, so any student who sought to avoid using a common restroom with Mr. Grimm had only to use one of those. She also noted that the School Board reacted to the controversy by taking steps “to give all students the option for even greater privacy by installing partitions between urinals and privacy strips for stall doors.” Thus, any validity to privacy concerns raised when the controversy first arose had been substantially alleviated as a result of these renovations.
Having denied the School District’s motion to dismiss the amended complaint, Judge Allen directed the attorneys to contact the Courtroom Deputy for United States Magistrate Judges within thirty days to schedule a settlement conference. If the parties can’t work out a settlement with a magistrate judge, the district court will issue a final order dictating what the school district must do to be in compliance with Title IX and the Constitution. And, because Grimm is the prevailing party in this long-running and hotly litigated civil rights case, one suspects that sometime down the road there will be a substantial attorneys’ fee award.
Grimm’s lawyer, Joshua Block of the ACLU LGBTQ Rights Project, indicated that their goal in the case at this point is the declaratory judgment and nominal damages for Grimm, and of course an end to the School Board’s discriminatory policy. Grimm now lives in Berkeley, California, and intends to begin college this fall in the Bay Area, according to the New York Times’ report on the case.
Of course, the School District may seek to appeal Judge Allen’s Order to the 4th Circuit. Attorney General Jeff Sessions issued a Memorandum last fall formally rejecting the Obama Administration’s position that federal sex discrimination laws forbid gender identity discrimination, so the School District could count on the Justice Department to support an appeal. And Trump’s rapid pace in filling federal circuit court vacancies may slow or eventually halt the continuing trend of transgender-positive rulings from the other circuit courts, but that is not likely to be the case in the 4th Circuit for some time. At present that court has an overwhelming majority of Democratic appointees (including six by Obama and four by Clinton on the 15 member court) with only one vacancy for Trump to fill. The 4th Circuit was out front of the Supreme Court in 2014 in striking down state bans on same-sex marriage, and its 2016 opinion in Gavin Grimm’s case was notably transgender-friendly, so it is unlikely that an appeal by the School District will be successful in the 4th Circuit. The Supreme Court, of course, may be a different matter. Time will tell.