LEGAL
Gavin Grimm Triumphs in Battle with Va. School Board
Trans student has spent years fi ghting for bathroom rights
BY ARTHUR S. LEONARD
The Supreme Court handed
a fi nal victory to Gavin
Grimm on June 28 when
it refused to review a decision
by the Richmond-based US
Court of Appeals for the Fourth Circuit,
which ruled last year that the
Gloucester County (Virginia) School
Board violated Title IX of the Education
Amendments of 1972 and
the Equal Protection Clause of the
14th Amendment when it refused to
let Grimm use the boys’ restrooms
at his high school and would not
correct his name and gender on
school records to be consistent with
his gender identity.
In a statement posted on Twitter,
Grimm wrote, “I was barred from the
bathroom at my high school seven
years ago… now it’s over. We won…
Too many people played integral
roles in our success and too many
people who loved me so much. I have
nothing more to say but thank you,
thank you, thank you. Honored to
have been part of this victory.”
Grimm, a courageous young
transgender man who enjoyed
stalwart support from his parents,
faced down rooms full of
hostile speakers at two School
Board meetings in November and
December 2014, as the board was
considering a resolution to exclude
transgender students from using
restrooms consistent with their
gender identity. The high school
principal had allowed him to use
the boys’ restrooms, which he did
without incident for almost two
months, but then parents complained
to the board, resulting in
the tense board meetings. Despite
his heartfelt testimony, the Board
voted 6-1 to adopt the resolution,
while at the same time approving
expenditures to increase privacy
in the boy’s restrooms by putting
dividers between urinals and privacy
strips on toilet stall doors. The
board authorized expenditures
to transform several restrooms to
single-use facilities, and provided
that Grimm could use those restrooms,
the restroom in the nurse’s
offi ce, or the girls’ restrooms.
Gavin Grimm reacted with joy after he landed a legal victory on June 28.
None of these choices suited
Grimm. The single-use restrooms
and the nurse’s offi ce were too far
from where his classes were scheduled
to be practical, using girls’
restrooms when he had already
transitioned was out of the question,
and the policy was stigmatizing
and psychologically harmful –
as well as medically harmful since
Grimm tried to avoid urinating
while at school and ended up with
urinary tract infections.
Although Grimm obtained a
court-ordered name-change and received
a new birth certifi cate identifying
him as male after top surgery,
the board refused to recognize him
as a boy and allow him to use the
boys’ restrooms, and denied his request
to correct school records to
show his legal name and sex.
The American Civil Liberties
Union fi led suit on Grimm’s behalf
in federal district court, claiming
violations of Title IX and the Equal
Protection Clause. Title IX prohibits
educational institutions that receive
federal funding from discriminating
against students on the
basis of sex. The district judge dismissed
the Title IX claim, despite
a letter from the US Department
of Education stating that Grimm’s
case would be covered under Title
IX. The judge disagreed, ruling
that gender identity claims could
not be brought under Title IX, and
reserving judgment on the Equal
DONNA ACETO
Protection claim while Grimm appealed
the dismissal ruling. This
lawsuit had prompted the US Department
of Education to adopt a
formal policy that it communicated
to all school districts in the country
through a “Dear Colleague” letter,
directing schools to acknowledge
students’ gender identity for
all purposes.
The Fourth Circuit Court of Appeals
reversed the dismissal of the
Title IX claim, fi nding that the district
judge should have “deferred” to
the Obama Administration’s interpretation
of Title IX. The Supreme
Court granted the school board’s
petition to review that ruling,
scheduling it for oral argument in
March 2017, but shortly before the
argument date the Trump Administration
formally “withdrew” the
Obama Administration’s interpretation
of Title IX, and the Supreme
Court cancelled the hearing and
sent the case back to the Fourth
Circuit for reconsideration.
Throughout Trump’s presidency,
the Justice Department and other
federal agencies took the position
that federal sex discrimination
laws did not apply to gender identity
discrimination claims. After the
Supreme Court ruled in 2020 in
Bostock v. Clayton County, Georgia,
that Title VII’s ban on employment
discrimination because of sex applied
to gender identity claims, the
Trump Administration argued that
the decision did not apply to other
federal sex discrimination laws, despite
several lower federal court decisions
applying Bostock’s reasoning
in cases under other statutes.
Upon taking offi ce, President
Joe Biden issued an Executive Order
directing federal agencies to apply
the Bostock ruling broadly, and
both the Justice Department and
the Education Department have issued
interpretations of Title IX applying
it to sexual orientation and
gender identity claims. But these
actions are not binding on the federal
courts, so the Supreme Court’s
June 28 announcement sends an
important signal to the federal judiciary,
implicitly rejecting the Trump
Administration’s narrow application
of the Bostock ruling.
After the Fourth Circuit sent
Gavin Grimm’s case back to the district
court in 2017, the school board
argued that the case should be dismissed
as “moot” because Grimm
had graduated from the high school
that spring. But the district court
and the Fourth Circuit determined
that it was not moot. Grimm still
had a potential claim for damages
for violation of his rights under Title
IX and the Constitution, and his
complaint had been amended in response
to the school board’s refusal
to acknowledge his gender identity
in school records.
The case was assigned to a different
district judge, who granted
summary judgment to Grimm on
all his claims, fi nding that the
School Board violated both Title
IX and the 14th Amendment. Signifi
cantly, the court found that
“heightened scrutiny” applied to
the Equal Protection claim, under
which the board had the burden of
showing that its policy was necessary
to achieve an important state
interest. In this case, the board
said the policy was necessary to
protect the privacy of other students,
but the court rejected that
argument, fi nding that the alterations
the board had authorized for
the boys’ restrooms had obviated
that concern. Last August, the
➤ GRIMM, continued on p.13
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