On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the case moot. Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158. The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier this summer whether this is so, and the court concluded that more fact-finding is necessary before the issue of its jurisdiction can be decided.
Grimm’s mother filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination protected under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment. The Board moved to dismiss the case, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution. Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, reserved judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal. While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated the ban on sex discrimination.
Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations. The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction. Reacting to the Circuit’s decision, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year. But that was not to be. Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling. Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.
The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017. Meanwhile, Donald Trump was elected president, took office in January, 2017, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education. Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 announced that the Departments of Education and Justice were “withdrawing” the document that had been submitted to the district court and, in effect, taking no position at that time on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government. The Supreme Court reacted to this development by cancelling the oral argument, vacating the 4th Circuit’s decision, and sending the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4th Circuit tentatively scheduled an argument to be held in September, but then, after Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.
The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2. “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.” Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit. He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.
The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally. “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.” The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.” The factual record in this case consists of the sworn allegations that were presented to the district court back in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school. The parties’ assertions in their briefs are just that: merely argumentative assertions, not sworn statements of fact or actual testimony submitted in court. Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.” They are not sending the case back for a new ruling on the merits, just for a ruling on the question of mootness after additional fact-finding. Any determination by Judge Doumar that the case is moot could, of course, be appealed by Grimm, so final resolution of this case may still take some time, and it is possible that the courts will resolve the mootness issue against the Board.
If the mootness issue is decided in Grimm’s favor and the case returns to the 4th Circuit for a ruling on whether the Title IX claim was appropriately dismissed, it may yet provide a vehicle for the ACLU LGBT Right Project and the ACLU Foundation of Virginia, which represent Grimm, to get this issue back before the Supreme Court, although if they are ultimately successful in the 4th Circuit, that would depend on the School Board persisting in seeking Supreme Court review. However, this issue is being litigated in other places, in some cases involving elementary school students, and it is possible that one of the other cases will get far enough along to knock at the Supreme Court’s door long before the plaintiff has graduated. Indeed, while this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. It seems only a matter of time before it gets to the Supreme Court, regardless of what the Trump Administration may say about the issue, unless Congress intervenes by amending Title IX, an outcome that is unlikely unless the Senate Republicans abolish the filibuster rule for ordinary legislation, as Trump has been asking them to do, so far without success.Tags: 14th Amendment, ACLU Foundation of Virginia, ACLU LGBT Rights Project, equal protection of the laws, gender identity discrimination, Grimm v. Gloucester County School Board, Title IX of the Education Amendments Act of 1972, transgender bathroom access, U.S. Court of Appeals for the 4th Circuit, U.S. District Judge Robert Doumar, United States Supreme Court, Whitaker v. Kenosha Unified School District No. 1 Board of Education