GAVIN GRIMM PREVAILS, from p.4
the school board argued the case
was moot. 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 events, and that he was
still entitled to a ruling on his
claim for damages.
In May 2018, 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 that Grimm’s equal protection
claim would be decided using
what is known as “intermediate
scrutiny,” which puts the burden
on the government to show that
its policy substantially advances
an important government interest.
In February of this year, the court
allowed Grimm to amend his complaint
to add the school board’s
refusal to issue him a corrected
transcript.
On July 23, both parties made
arguments on their motions for
summary judgment. Regarding
Grimm’s Title IX claim, Wright Allen
found he had been excluded
from participation in an education
program on the basis of sex by being
barred from using the boys’
restrooms, that the policy harmed
him both physically and psychologically,
and that because the
Gloucester schools receive federal
fi nancial assistance they are subject
to Title IX. Wright Allen granted
Grimm summary judgment on
his Title IX claim.
On his 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 justifi cation
for its use of the classifi cation is
‘exceedingly persuasive.’” In Gloucester
County, the school board’s
justifi cation was “an interest in
protecting the privacy rights of
students, specifi cally privacy interests
that students have in protecting
their unclothed bodies.”
Wright Allen found that the
board made “no showing that the
challenged policy is ‘substantially
related’ to protection of student privacy,”
noting there were no student
complaints during the seven-week
period Grimm had used the boys’
restrooms. And she wrote, “The
Board’s privacy argument also
ignores the practical realities of
how transgender individuals use
a restroom,” and quoted from another
trans bathroom court opinion
that explained, “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.”
A witness for the board was unable
to specifi cally explain how expanded
private stalls and urinal
dividers did not address any lingering
privacy concerns a student
might have. Quoting from the Seventh
Circuit Court of Appeals ruling
in favor of Wisconsin transgender
student Ash Whitaker , Wright
Allen wrote, “This court is compelled
to conclude that the Board’s
privacy argument ‘is based upon
sheer conjecture and abstraction.’”
Wright Allen concluded that the
school board’s policy is unconstitutional,
adding that its refusal to
change the gender indication on
Grimm’s school records “implicates
no privacy concerns.”
While acknowledging the tough
choices facing the Gloucester
schools in 2014 amidst “the many
expressions of concern arising
from genuine love for our children
and the fi erce instinct to protect
and raise our children safely,”
Wright Allen wrote that this does
not excuse an unconstitutionally
discriminatory policy.
Since Grimm had long since disclaimed
any demand for fi nancial
compensation for the injuries he
suffered, the court awarded him
only nominal damages of $1. Now
20, Grimm is a student at Berkeley
City College in California.
Wright Allen, nominated to the
court by President Barack Obama,
was the fi rst female African-American
judge to serve in the Eastern
District of Virginia. Prior to this
ruling, her most noteworthy decision,
issued in February 2014, declared
Virginia’s ban on same-sex
marriage unconstitutional.
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