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Federal Court Rules for Gavin Grimm in Long-Running Virginia Transgender Bathroom Case

Posted on: August 10th, 2019 by Art Leonard No Comments

After more than four years of litigation, there is finally a ruling on the merits in Gavin Grimm’s transgender rights lawsuit against the Gloucester County (Virginia) School Board.  On August 9, U.S. District Judge Arenda L. Wright Allen granted Grimm’s motion for summary judgment, finding that the school district violated his rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s Equal Protection Clause by refusing to let the transgender boy use the boys’ restroom facilities while he was attending Gloucester High School and by refusing to update his official school transcript to conform to the “male” designation on his amended birth certificate.  Grimm v. Gloucester County School Board, 2019 WL 3774118 (E.D. Va., Aug. 9, 2019).

In addition to awarding Grimm a symbolic damage recovery of $1.00, the court issued a permanent injunction requiring the School Board to update Grimm’s official records and provide “legitimate copies of such records” to Grimm by August 19.  Judge Wright Allen also ordered that the Board “shall pay Mr. Grimm’s reasonable costs and attorneys’ fees” in an amount to be determined.  In light of the length and complexity of this lawsuit, the fee award is likely to be substantial.

Grimm began his freshman year at Gloucester High School in 2013 listed as a girl on enrollment papers, consistent with his original birth certificate.  During spring of his freshman year, Grimm told his parents that he was transgender and he began therapy with Dr. Lisa Griffin, a psychologist experienced in transgender issues, who diagnosed gender dysphoria and put the diagnosis in a letter that Grimm later presented to school officials.  Also in 2014, Grimm legally changed his first name to Gavin and began using the mens’ restrooms “in public venues.”  Prior to the beginning of his sophomore year at Gloucester High, he and his mother met with a school guidance counselor, provided a copy of Dr. Griffin’s letter, and requested that Grimm be treated as a boy at school.

They agreed that Grimm would use the restroom in the nurse’s office, but he found it stigmatizing and inconvenient, making him late for classes.  After a few weeks of this, he met with the guidance counselor and sought permission to use the boys’ restrooms.  The request went up to the school’s principal, Nate Collins, who conferred with the Superintendent of Schools, Walter Clemons, “who offered to support Principal Collins’ final decision,” according to testimony in the court record.  Collins then gave Grimm the go-ahead to use the boys’ bathrooms, which he did for seven weeks without any incident.  Grimm had been given permission to complete his phys ed requirement through an on-line course and never used the boys’ locker room at school.

Word that a transgender boy was using the boys’ restrooms got out in the community and stirred up opposition from “adult members of the community,” who contacted school officials to demand that Grimm be barred from using the boys’ rooms.  The School Board devoted two meetings to the issue, finally voting in December 2014 to adopt a formal policy that the use of restroom and locker room facilities “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”

The Board announced that it would construct some single-sex unisex restrooms in the high school, but until then Grimm would have to use the restroom in the nurse’s office.  There eventually were such unisex restrooms, but they were not conveniently located for use between classes and Grimm ended up not using them, finding a requirement to use them as stigmatizing.  Instead, he tried to avoid urinating at school and developed urinary tract infections, as well as suffering psychological trauma.

Meanwhile, at the end of his sophomore year in June 2015, the Virginia Department of Motor Vehicles issued Grimm a state ID card identifying him as male.  When he need brief hospitalization to deal with thoughts of suicide during his junior year, he was admitted to the boys’ ward at Virginia Commonwealth University’s hospital.  In June 2016, he had top surgery, and on September 9, 2016, the Gloucester County Circuit Court ordered the Health Department to issue him a new birth certificate listing him as male, referring to his surgery as “gender reassignment surgery” even though it did not involve genital alteration.  In October 2016, Grimm presented a photocopy of his new birth certificate to the school, but they refused to update his records to reflect male status, and his transcripts still identify him as female.

Grimm, represented by the American Civil Liberties Union (ACLU), filed his lawsuit on June 11, 2015, in the U.S. District Court for the Eastern District of Virginia in Norfolk.  The case was assigned to Senior District Judge Robert G. Doumar, who quickly granted the school district’s motion to dismiss the Title IX claim and reserved judgment on Grimm’s constitutional claim while Grimm appealed the dismissal.  The 4th Circuit Court of Appeals reversed the dismissal, relying on an interpretation of Title IX endorsed by the U.S. Departments of Education and Justice during the Obama Administration, and sent the case back to Judge Doumar, who issued a preliminary injunction on June 23, 2016, requiring the School Board to let Grimm use the boys’ restrooms.  Conveniently for the school board, this order came at the end of the school year, so they had several months of summer break to try to forestall having to let Grimm use the boys’ restroom when school resumed.  Although the 4th Circuit quickly turned down the Board’s motion to stay the injunction, an emergency application to the Supreme Court was granted on August 3, 2016, pending the filing of a petition for review by the School Board and guaranteeing that Grimm was unlikely to be able to use the boys’ restrooms during his senior year if review was granted by the Supreme Court.

Ultimately, the Board did filed its appeal, which was granted with argument set to take place in March 2017.  This timing would virtually guarantee that Grimm would not be able to use the boys’ restrooms at the high school before his graduation, since a case argued in March would not likely result in an opinion being issued until June.  Elections and fate intervened as well, as the new Trump Administration moved to “withdraw” the Obama Administration’s interpretation of Title IX, on which the 4th Circuit had relied.  The Solicitor General advised the Supreme Court of this withdrawal and the Court took the case off the hearing calendar and sent it back to the 4th Circuit, which in turn sent it back to the district court.  Judge Doumar having retired, the case was reassigned to Judge Wright Allen.

Since Grimm had graduated by then, the School Board argued that his request for injunctive relief was moot, as he would no longer be attending Gloucester High School. The ACLU countered that the question of the restroom policy’s lawfulness was not moot, that Grimm as an alumnus would be barred from using the boys’ restroom when he returned to the school for public events, that Grimm was still entitled to a ruling on his claim for damages.  The district court refused to dismiss the case, and discovery went forward.  Although the lawsuit had already been to the 4th Circuit twice and to the Supreme Court, there still had not been any ultimate ruling on the merits of the case at that point.

On May 22, 2018, Judge Wright Allen issued a ruling denying the School Board’s motion to dismiss the case as moot, and she ruled that Grimm had a viable claim of sex discrimination under Title IX.  She also ruled at that time that the constitutional equal protection claim would be decided using “intermediate scrutiny,” which puts to the government the burden to show that its policy substantially advances an important government interest.  On February 19, 2019, the court allowed Grimm to file a new amended complaint adding the issue of the School Board’s refusal to issue a corrected transcript.

On July 23, the court heard arguments on new motions for summary judgment filed by both parties.  These motions were decided by Judge Wright Allen’s August 9 ruling, which also rejected most of the School Board’s objections to various items of evidence offered by Grimm – mainly letters and medical records documenting his gender dysphoria diagnosis and subsequent treatment – which were incorrectly described by the School Board as “expert testimony” that was not admissible through discovery.  The court agreed to the school board’s argument that documents relating to failed settlement discussions should be excluded from consideration.

As to the merits of Grimm’s Title IX claim, the court found that Grimm had been excluded from participation in an education program on the basis of sex when the School Board adopted a policy that would bar him from using the boys’ restrooms at the high school, that the policy harmed Grimm both physically and psychologically, and that because the Gloucester schools receive federal financial assistance, they are subject to Title IX.   Consequently, summary judgment should be granted to Grimm on his Title IX claim.

As to the Equal Protection claim, the court relied on a Supreme Court ruling concerning the exclusion of girls from Virginia Military Institute, in which Justice Ruth Bader Ginsburg wrote that in a sex-discrimination case involving “intermediate scrutiny,” the defendant bears the burden of “demonstrating that its proffered justification for its use of the classification is ‘exceedingly persuasive.’”  In this case, the Board’s justification was “an interest in protecting the privacy rights of students, specifically privacy interests that students have in protecting their unclothed bodies.”

Judge Wright Allen found that the Board had made “no showing that the challenged policy is ‘substantially related’ to protection of student privacy.”  She referred to the lack of any student complaints during the seven-week period that Grimm used the boys’ restrooms during his sophomore year and, she wrote, “The Board’s privacy argument also ignores the practical realities of how transgender individuals use a restroom.”  Common sense prevailed, as the judge quoted another trans bathroom court opinion: “When he goes into a restroom, the transgender student enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves.”

The Board’s witness at the summary judgment hearing, conceding that there was no privacy concern for other students when a transgender student walks into a stall and shuts the door, testified that “privacy concerns are implicated when students use the urinal, use the toilet, or open their pants to tuck in their shirts.  When asked why the expanded stalls and urinal dividers could not fully address those situations,” wrote the judge, “Mr. Andersen responded that he ‘was sure’ the policy also protected privacy interests in other ways, but that he ‘couldn’t think of any other off the top of his head.’  This court is compelled to conclude that the Board’s privacy argument ‘is based upon sheer conjecture and abstraction,’” this time referring to the 7th Circuit ruling in Ash Whitaker’s trans bathroom case.

Judge Wright Allen also pointed out that although trans high school students have not had genital surgery, if they are taking hormones they are developing secondary sex characteristics of the gender with which they identify.  “If exposure to nudity were a real concern,” she wrote, “forcing such a transgender girl to use male restrooms could likely expose boys to viewing physical characteristics of the opposite sex. From this perspective, the Board’s privacy concerns fail to support the policy it implemented.”

The court concluded that the School Board’s policy must be found unconstitutional, pointing out, in addition, that the Board’s refusal to change the gender indication on Grimm’s school records “implicates no privacy concerns.”  The Board had contended that there were some doubts about the validity of the new birth certificate, because the photocopy they were provided was marked “Void.”  This was explained away by testimony from the government official responsible for issuing the documents.  It seems that all but the original would be marked “Void,” and that Grimm has a valid, authentic birth certificate identifying him as male, which the School Board should have honored.

Judge Wright Allen acknowledged the difficult task the School Board faced in deciding how to proceed during the fall of 2014.  She wrote, “The Board undertook the unenviable responsibility of trying to honor expressions of concern advanced by its constituency as it navigated the challenges represented by issues that barely could have been imagined or anticipated a generation ago.  This Court acknowledges the many expressions of concern arising from genuine love for our children and the fierce instinct to protect and raise our children safely in a society that is growing ever more complex.  There can be no doubt that all involved in this case have the best interests of the students at heart.”  However, this was no excuse for imposing a discriminatory and unconstitutional policy on Grimm.

“However well-intentioned some external challenges may have been,” Wright Allen continued, “and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand.  These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives of our children who rely upon us to protect them compassionately and in ways that more perfectly respect the dignity of every person.”

Grimm had long since disclaimed any demand for financial compensation for the injuries he suffered in violation of his statutory and constitutional rights, so the court awarded only nominal (symbolic) damages of $1.00, but it directed that the School Board issue a new, corrected transcript in ten days, and the parties will now haggle about the size of the award of attorney’s fees and costs, which should be substantial.

Judge Arenda L. Wright Allen, nominated to the court by President Barack Obama, was the first female African-American judge to serve in the U.S. District Court for the Eastern District of Virginia after she was unanimously confirmed by the Senate (96-0) in May 2011.  She had previously been the top Federal Public Defender in the Eastern District of Virginia, and was a former Assistant U.S. Attorney and a military judge.  Prior to this ruling, her most noteworthy decision, issued in February 2014, declared Virginia’s ban on same-sex marriage unconstitutional.

 

Federal Court Explains Pretrial Motion Rulings Against Transgender Student in Restroom Lawsuit

Posted on: September 26th, 2015 by Art Leonard No Comments

U.S. District Judge Robert G. Doumar issued an opinion on September 17 in G. G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va.), explaining his earlier bench decision in July dismissing the plaintiff’s Title IX count and his September 4 denial of the plaintiff’s request for a preliminary injunction in a dispute over restroom usage at the Gloucester, Virginia, High School. The plaintiff, a transgender boy, is being denied use of the restrooms designated for boys at the school. Judge Doumar found that Title IX does not require public schools to allow transgender students to use the restrooms that conform to their gender identity, so long as they are provided with “comparable” restroom facilities, and that the plaintiff had not presented evidence sufficient to support his request to be allowed to use the boys’ restrooms pending a final ruling on the merits of his constitutional equal protection claim.

According to G.G.’s complaint, although designated female at birth he began to feel like a boy at “a very young age.” By age 12, he had acknowledged his male identity to himself and by the time he was a high school freshman “most of his friends were aware that he identified as male” and “away from home and school, G.G. presented himself as male.” During his freshman year, starting in September 2013, he experienced “severe depression and anxiety related to the stress of concealing his gender identity from his family.” He alleges that this led him to avoid school during the spring semester and to take classes “through a home-bound program.” In April of that 2014 spring semester, he finally told his parents that he was a transgender male and at his request began to see a psychologist, who diagnosed him with gender dysphoria. The psychologist recommended that G.G. “begin living in accordance with his male gender identity in all respects” including restroom usage, and gave him a “Treatment Documentation Letter” confirming the diagnosis and these directions, stating that he was under treatment. The psychologist also recommended that he begin hormone treatment. In July 2014, G.G. petitioned the local court for a legal name change, which was granted, and G.G. requested that his friends and family use his new name and refer to him using male pronouns. In public settings, G.G. began using restrooms designated for males.

In August 2014, prior to the beginning of fall semester, G.G. and his mother notified officials at Gloucester High School about his gender dysphoria and his name change. The high school officials were very accommodating, agreeing to change school records to record his new name. G.G. and his mother met with the principal and guidance counselor to discuss his transition. They allowed him to notify all his teachers about his preferences. “Being unsure how students would react to his transition,” wrote Doumar, “G.G. initially agreed to use a separate bathroom in the nurse’s office” and he was allowed to fulfill his physical education requirement through the home school program to avoid use of a locker room at school. But after the semester began G.G. “found it stigmatizing to use a separate restroom” and requested permission to use the male restrooms, which was granted by the principal. G.G. used the male restrooms for seven weeks, during which the School Board received protests from parents on behalf of their sons about G.G.’s use of the male restrooms.

A member of the School Board introduced a resolution that would limit use of restroom facilities to “the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” A majority of speakers at the November School Board meeting supported the resolution, contending that G.G.’s use of a male restroom violated the privacy rights of male students and might “lead to sexual assault in the bathrooms.” At least one parent suggested that a non-transgender boy could come to school wearing a dress and demand to use the girl’s restroom based on the precedent of letting G.G. use the men’s room. G.G. testified, speaking against the proposed resolution and “outing” himself to the entire community as transgender. The School Board voted 4-3 to defer a vote on the resolution to its next meeting, but prior to that meeting issued a news release indicating that steps were being taken to increase the privacy of all students by modifying the restrooms to expand partitions between urinals in the male restrooms and “adding privacy strips to the doors of stalls in all restrooms.” In addition, the school designated three single-stall unisex restrooms, “similar to what’s in many other public spaces.” At its December 9 meeting, the Board approved the resolution restricting restroom use by a vote of 6-1. The next day, the principal instructed G.G. not to use the boys’ restroom, threatening him with discipline if he violated the rule. He was allowed only to use the restroom in the nurse’s office, the girls’ restrooms, and the newly-designated unisex restrooms.

G.G. began receiving hormone treatments shortly after that School Board meeting, deepening his voice, increasing his facial hair and giving him a “more masculine appearance.” He claimed that as he was presenting as male, he was unwelcome on the girls’ restrooms; and that girls had actually asked him to leave when he tried to use those restrooms before this controversy arose. He also alleged that the unisex restrooms were not convenient to the rooms where his classes met,=, and that using them would be stigmatizing to him, causing psychological damage.

On June 11, 2015, G.G. filed suit alleging a violation of Title IX’s ban on sex discrimination in public schools and the equal protection clause, and requested a preliminary injunction to allow him to use the boys’ restrooms pending a final ruling on the merits of his claim. The School Board moved to dismiss the case. The U.S. Justice Department filed a statement of interest in the case, arguing that the Board’s resolution violated Title IX. The court heard initial arguments on the motions on July 27, and promptly dismissed the Title IX claim. In a subsequent hearing on September 4, the court denied the motion for preliminary injunction, promising to issue an explanatory opinion for both rulings at a later date.

Turning first to the Title IX claim, the court found that an existing Title IX regulation appeared to authorize the School Board’s restroom use policy. 34 C.F.R. Sec. 106.33 “expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable,” Judge Doumar wrote, and he found that the regulation is not “arbitrary, capricious, or manifestly contrary to the statute.” Rather, he found, it “seems to effectuate Title IX’s provision allowing separate living facilities based on sex,” so he gave it controlling weight. Rejecting G.G.’s argument that Title IX should be construed to prohibit only gender identity discrimination as such, he said, “under any fair reading, ‘sex’ in Section 106.33 clearly includes biological sex. Because the School Board’s policy of providing separate bathrooms on the basis of biological sex is permissible under the regulation, the Court need not decide whether ‘sex’ in Section 106.33 also includes ‘gender identity’.” Judge Doumar found that G.G. had not alleged that the unisex facilities or the nurse’s restroom failed to satisfy the requirement of “comparable facilities” under the regulation, so no Title IX claim was stated.

The court had to deal as well with the Justice Department’s argument that the court should defer to a more recent interpretation by the Department of Education, which was issued in a January 7, 2015 “Guidance Letter” stating that students should be allowed to use restroom facilities consistent with their gender identity, which itself was based on an interpretive bulletin issued by DOE in December 2014. “The Department of Education’s interpretation does not stand up to scrutiny,” wrote the judge. “Unlike regulations, interpretations in opinion letters, policy statements, agency manuals, and enforcement guidelines do not warrant” the deference that courts normally pay to agency regulations that are adopted under statutes pursuant to the Administrative Procedure Act through a process of publication, public comment and, sometimes, public hearings before final official publication.

“An agency’s interpretation of its own regulation, even one contained in an opinion letter or a guidance document, is given controlling weight if (1) the regulation is ambiguous and (2) the interpretation is not plainly erroneous or inconsistent with the regulation,” wrote Judge Doumar. Using this standard, he concluded that the recent guidance letter did not stand up, because “even under the most liberal reading, ‘on the basis of sex’ in Section 106.33 means both ‘on the basis of gender’ and ‘on the basis of biological sex,’” so the school was authorized to segregate restrooms based on the biological sex of students. “To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to ‘create de facto a new regulation’ through the use of a mere letter and guidance document,” he continued. “If the Department of Education wishes to amend its regulation, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedure Act.”

Turning to the motion for preliminary injunction, the court found that G.G. failed to meet the most important test: to show that he was likely to prevail on the merits. Unlike the motion to dismiss the Title IX claim, as to which the court had to accept as true all of G.G.’s factual allegations, on the motion for preliminary injunction Judge Doumar said that G.G. had to submit evidence tending to prove his allegations, and as to this he had fallen short, merely repeating the allegations of the complaint and failing to flesh them out with the kind of factual details that would show he was likely to win on his equal protection claim. Among other things, Judge Doumar faulted G.G. for failing to present an affidavit from the psychologist who had diagnosed his gender dysphoria. The judge pointed out that the expert psychological evidence submitted with the motion was by another psychologist apparently hired for purposes of the litigation who had only met briefly with G.G. once, and whose testimony was generalized and not specific to G.G. Thus, there was no evidence beyond G.G.’s own assertions that being banned from using the boys’ restrooms was psychologically harmful to G.G. G.G. also failed to provide factual evidence to demonstrate his contention that the unisex restrooms were so inconveniently located as to present a hardship. He claimed that because of the proximity problem he had to hold his urine and suffered urinary infections, but offered no medical testimony to support this claim.

Most importantly, however, Judge Doumar accepted the School Board’s argument that allowing G.G. to use the boys’ restrooms would intrude on the constitutional privacy rights of male students. He observed that courts have generally found that individuals have a constitutional right of privacy with regard to exposure of their bodies to the opposite sex. The underlying, albeit unspoken, aspect of this analysis was that the complaining boys regard G.G. as a girl and object to a girl being present and observing them in the boys’ room. The court cited a recent decision by a federal court in Pittsburgh, rejecting a transgender man’s restroom suit against the University of Pittsburgh, and observed that the privacy concerns are even greater in the context of high school students. To the court, when the clash is between the constitutional right of privacy of the male students and the alleged psychological harm to G.G. of having to use a unisex restroom, the balance clearly favored the other male students, at least for purposes of preliminary relief pending trial. Doumar emphasized that G.G. was raising a “novel” claim, that it was unclear that he could prevail on the merits, and that he had presented no factual evidence on the issue of any irreparable injury that he might suffer if denied the use of the boys’ restrooms while this case proceeds on his equal protection claim.

G.G. is represented by attorneys from the ACLU of Virginia and the ACLU’s national LGBT Rights Project, who might seek to appeal these rulings to the 4th Circuit Court of Appeals. Although the 4th Circuit was traditionally a very conservative bench, President Obama’s appointments have turned it around, resulting in the circuit’s Virginia marriage equality decision in 2014, followed by a refusal to stay that opinion pending appeal. Thus, it is hard to predict how the 4th Circuit might react in light of the Justice Department’s intervention on behalf of G.G. in this case, but an appeal might not be hopeless.