Opening up a new chapter in Gavin Grimm’s continuing battle to vindicate his rights as a transgender man, US District Judge Arenda L. Wright Allen, on May 22, denied the Gloucester County, Virginia, School Board’s motion to dismiss the latest version of the case the young man first filed in July 2015.
During the summer of 2014, Grimm’s transition had progressed to the point where he and his mother met with school officials to tell them that he was a transgender boy and “would be attending school as a boy,” wrote Allen.
The officials agreed to treat him as a boy, including allowing him to use the boys’ restrooms, which he did for about seven weeks without incident — until complaints by some parents led the school board to adopt a formal policy prohibiting Grimm from doing so.
The school established some single-user restrooms theoretically open to all students, but Grimm was the only one who used them because they were not located near 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.”
Grimm filed his lawsuit the summer after his sophomore year, claiming violations of Title IX — a federal statute that forbids schools receiving federal funding from discriminating because of sex — as well as the US Constitution’s Equal Protection Clause.
By December 2014, Grimm had begun hormone therapy, “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 card from the Motor Vehicles Department that designated him as male. The following summer, 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 state health department to issue him a birth certificate listing him as male, which he received in October 2016. As of that date, then, Grimm was male as a matter of Virginia law.
Despite all this, the school district clung to its contention that his “biological gender” was female and so he would not be allowed to use the boys’ restrooms at the high school. That prohibition lasted until the spring of 2017, when Grimm graduated.
In response to Grimm’s lawsuit, Senior US District Judge Robert G. Doumar dismissed the Title IX claim in September 2015 while holding his Equal Protection Claim in reserve while Grimm appealed the Title IX dismissal to the Fourth Circuit Court of Appeals, based in Richmond.
In the spring of 2016, the Fourth Circuit sent the case back to the district court, finding that the lower court should have deferred to the position advanced by President Barack Obama’s Education and Justice Departments, which concluded that discrimination because of gender identity is sex discrimination under Title IX and that schools must treat students consistent with their gender identity.
In response, Doumar in the summer of 2016, prior to Grimm’s senior year, issued a preliminary injunction ordering the district to let him use the boys’ restrooms. The school district then obtained a stay of that order from the Supreme Court, which subsequently granted the district’s petition to review the Fourth Circuit’s ruling on deference to the Obama administration’s Title IX position.
Before the high court could hear the case, however, the new Trump administration “withdrew” the Obama administration position, knocking the props out from under the Fourth Circuit deference ruling. The case was then sent back to the Fourth Circuit, which in turn sent it back to the district court. By that time, Grimm had graduated.
The school district then argued the case was moot, but Grimm begged to differ, arguing that his Title IX and equal protection rights had been continuously violated from the time the exclusionary restroom policy was adopted through his graduation. In an amended complaint, he sought a declaratory judgment regarding the violation of his rights under both Title IX and the Constitution and an end to the school’s exclusionary policy.
The district’s move to dismiss this new complaint led to the May 22 ruling by Judge Allen, too whom the case had been reassigned in the interim.
Allen’s opinion relies heavily on important judicial developments that have occurred since Doumar initially dismissed the Title IX claim back in 2015. Neither the Fourth Circuit nor the Supreme Court has yet ruled on the merits of whether federal laws that forbid discrimination because of sex apply to gender identity discrimination claims as well. As a result, Allen looked to “persuasive precedents” — the lengthening list of federal courts rulings, including from five different circuit courts of appeals, 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 from 1989 and Oncale v. Sundowner Offshore Services from1998. In Price Waterhouse, the Supreme Court found intentional sex discrimination in the accounting firm’s denying a woman a partnership promotion because she was viewed as inadequately feminine by several partners. In Oncale, the high court ruled that Title VII, the federal law banning employment discrimination because of sex, could apply to a man’s claim of hostile environment sexual harassment in an all-male workplace. Even if that scenario was not contemplated by Congress when it passed Title VII in 1964, the court held, the 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, and the Title VII employment provisions of the Civil Rights Act as well Title IX and the Equal Protection Clause. District courts have also found such protection under the Fair Housing Act.
A consensus based on the gender stereotype theory has emerged, even in circuits traditionally hostile to sexual minority discrimination claims.
Most significantly, the Chicago-based Seventh Circuit last year ruled in the case of Ashton Whitaker, a transgender boy in Wisconsin, 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.
Closer to home for Grimm, on March 12 of this year, US District Judge George L. Russell, III, ruled in a case from Maryland (which is also in the Fourth 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 Russell’s analysis persuasive, as she did the recent cases from other courts.
Turning to Grimm’s constitutional claim, 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 government policy under challenge is presumed unconstitutional and the government — here, the school district — bears the burden of showing that it substantially advances an important governmental interest.
The Gloucester County schools argued that its interest in protecting the privacy of other students was sufficient to vindicate its policy, but 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 Grimm could use one of those. She also noted that the district 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.” As a result, the privacy concerns raised when the controversy first arose had been substantially alleviated.
Denying the school district’s motion to dismiss Grimm’s amended complaint, Allen gave the attorneys 30 days to schedule a settlement conference with a magistrate judge. If a settlement cant’ be worked out, the district court will issue a final order dictating what the district must do to comply 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 American Civil Liberties Union’s LGBTQ Rights Project, indicated that their goal is the declaratory judgment, nominal damages for Grimm, and, of course, an end to the district’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.
The district could appeal Allen’s order to the Fourth Circuit. Attorney General Jeff Sessions has formally rejected the Obama administration’s position that federal sex discrimination laws forbid gender identity discrimination, so the district could count on the Justice Department to support such 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 Fourth Circuit for some time; it currently has six Obama appointees and four appointed by Bill Clinton on the 15-member court, with only one vacancy for Trump to fill.
The Fourth 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 district would be successful there. The Supreme Court, of course, may be a different matter. Time will tell.