School Board to SCOTUS: Overturn Grimm’s Victory
Former student sought to use bathroom consistent with his gender identity
BY ARTHUR S. LEONARD
The Gloucester County
(Virginia) School Board
fi led a petition on February
19 with the Supreme
Court seeking reviewing
of the lower courts’ rulings in the
lawsuit originally fi led by Gavin
Grimm, a transgender man, when
he was a student at the School
Board’s high school seeking to use
the bathroom consistent with his
gender identity.
The School Board is appealing
an August 2020 decision by
the Fourth Circuit Court of Appeals,
Gloucester County School
Board v. Grimm, which upheld
the district court’s ruling that the
School Board violated Grimm’s
rights under Title IX and the Equal
Protection Clause of the Fourteenth
Amendment by refusing to
let him use the boys’ restroom facilities
at the high school.
The Supreme Court had actually
granted a petition for certiorari —
which is when one side seeks permission
from the Supreme Court
to review the case — at an earlier
point in the case. In 2016, the
Fourth Circuit ruled that the district
court should not have rejected
Grimm’s Title IX sex discrimination
claim, but should instead have
deferred to the Obama Administration’s
interpretation of the statute.
The narrowly-framed question at
that time was whether the district
court should defer to an interpretation
of Title IX regulations by the
Obama Administration, which had
articulated the view that Title IX’s
ban on sex discrimination should
be interpreted to include discrimination
because of gender identity,
and that transgender students
should be entitled to be dealt with
by their schools consistent with
their gender identity.
Oral argument was scheduled
for March 2017, but then cancelled
at the request of the Trump Administration
as it withdrew the
Obama Administration’s policy,
and the Education Department
ceased to investigate and pursue
discrimination claims by transgender
Gavin Grimm at a Manhattan reception hosted by the American Civil Liberties Union and the New York
Civil Liberties Union.
students.
Grimm’s pursuit of injunctive relief
was largely mooted to a certain
extent when he graduated from the
high school that spring, but the
district court ruled in his favor on
liability under Title IX, holding that
he had suffered unlawful discrimination
while a student, as well as
by being denied an offi cial high
school transcript using his correct
name. That ruling that was upheld
by the Fourth Circuit on August
26, 2020, then denied a motion for
rehearing on September 22.
The Trump Administration had
disavowed enforcing Title IX in support
of restroom access claims by
transgender students, withdrawing
the Obama Administration’s
policy statement and proclaiming
disagreement with the contention
that Title IX extends to gender
identity discrimination claims.
But after Trump lost re-election in
November, the School Board had
a new incentive to keep the case
going, since President Joe Biden’s
campaign agenda, taken together
with the Supreme Court’s ruling
in Bostock v. Clayton County last
June, made it likely that the Education
DONNA ACETO
Department would resume
enforcing Title IX on gender identity
claims by students.
After the Supreme Court ruled
in Bostock, a Title VII employment
discrimination case, that discrimination
because of gender identity
was necessarily discrimination
because of sex, Trump Administration
offi cials asserted that the
ruling was not binding under Title
IX. However, President Biden’s
January 20 executive order directing
all federal agencies to follow
the reasoning of Bostock in enforcing
their statutory provisions
banning sex discrimination (and
specifi cally mentioning Title IX in
this regard), signaled that the Education
Department would resume
processing discrimination claims
by transgender students. Indeed,
in his executive order, President
Biden specifi cally mentioned that
students should not have to worry
about being allowed to use restrooms.
The question presented by the
Gloucester County petition states,
“Does Title IX or the Equal Protection
Clause require schools to let
transgender students use multiuser
LEGAL
restrooms designated for the
opposite biological sex, even when
single-user restrooms are available
for all students regardless of
gender identity?” This question, in
the context of employee restroom
use, was explicitly not addressed
by the Court in Bostock, as not
having been presented as an issue
in that case, and Justice Neil
Gorsuch, writing for the Supreme
Court, solely focused its holding
on the question whether a gender
identity or sexual orientation discrimination
claim could be presented
to the courts under Title
VII, although the Court’s articulated
reason in so ruling would
clearly apply to any statute that
forbids discrimination because of
sex (and plausibly to the Equal
Protection Clause as well), as
President Biden proclaimed in his
executive order.
The Supreme Court has never
directly ruled on the restroom issue
in the context of Title IX, but
its grant of review and scheduling
of argument in the earlier stage of
this case shows that at one time it
had found the issues suffi ciently
compelling to grant review. Since
that time, Justice Gorsuch has
replaced Justice Antonin Scalia,
Justice Brett Kavanaugh has replaced
Justice Anthony Kennedy,
and Justice Amy Coney Barrett
has replaced Justice Ruth Bader
Ginsburg, generally moving the
Court to a more conservative tilt.
While lower federal courts have
generally fallen into line with the
Obama Administration’s interpretation
of these issues in school
litigation, it is unclear that the
Supreme Court will continue that
trend with its current ideological
line-up. The Court’s 6-3 ruling in
Bostock does not necessarily signal
how it would rule if it grants
review in this case.
Grimm has been represented
throughout the litigation by the
LGBT Rights Project of the ACLU.
Gene C. Schaerr, an experienced
conservative Supreme Court litigator,
is listed as Counsel of Record
on the School Board’s petition.
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