YOUTH
Gavin Grimm, Trans Student Champ, Prevails Again
Fourth Circuit upholds his statutory, constitutional victory on school bathroom access
BY ARTHUR S. LEONARD
Capping litigation that
began in 2015, a threejudge
panel of the Richmond
based Fourth
Circuit Court of Appeals ruled in
a 2-1 vote on August 26 that the
school board in Gloucester County,
Virginia, violated the statutory
and constitutional rights of Gavin
Grimm, a transgender boy, when it
denied him the use of boys’ bathrooms
at the high school there.
This may sound like old news,
especially since other federal appellate
courts, most notably the
Philadelphia-based Third Circuit,
the Chicago-based Seventh Circuit,
the San Francisco-based
Ninth Circuit, and the Atlantabased
11th Circuit, have either
ruled in favor of transgender students’
rights or rejected arguments
made by cisgender students and
their parents against such equal
access policies.
But Grimm’s victory is particularly
delicious because the Trump
administration intervened at a key
point in the litigation to reverse the
support the Obama administration
had earlier given Grimm’s lawsuit.
Grimm, identifi ed as female at
birth, claimed his male gender
identity by the end of his freshman
year, taking on the name Gavin
and dressing and grooming as
male. Before his sophomore year,
he and his mother came to agreement
with the high school principal
about his using the boys’ bathrooms,
which he did for several
weeks without incident. As word
of this spread, however, some parents
deluged the school board with
protests, leading to two stormy
public meetings and a vote that
trans students in the district —
meaning, at that moment, Grimm
alone — were restricted to using a
single-occupant bathroom in the
nurse’s offi ce or bathrooms consistent
with their “biological sex” as
identifi ed at birth.
Represented by the American
Civil Liberties Union (ACLU),
Grimm fi led suit seeking a court
order to allow him to resume using
Gavin Grimm, now three years out of high school, had his statutory and constitutional claims against
the school in Gloucester County, Virginia, upheld by the Fourth Circuit Court of Appeals.
the boys’ bathrooms, and the
Obama administration weighed
in with a letter to the court siding
with Grimm’s argument that the
school board’s policy violated Title
IX of the Education Amendments
of 1972, which bans sex discrimination
against students. Despite
that letter, the district judge granted
the school board’s motion to
dismiss the Title IX claim, reserving
judgment on Grimm’s alternative
claim under the 14th Amendment’s
Equal Protection Clause.
Grimm appealed that dismissal,
and a three-judge panel of the
Fourth Circuit ruled that the district
court should have deferred to
the Obama administration’s Title
IX interpretation.
The school board, in turn,
sought review from the US Supreme
Court, which scheduled the
case for argument in March 2017.
But those arguments never took
place, because the new Trump administration,
at the behest of Attorney
General Jeff Sessions and
Education Secretary Betsy DeVos,
formally withdrew the Obama interpretation
on Title IX. Since the
Fourth Circuit’s reasoning was
based on deference to the Obama
administration’s posture, the Supreme
Court canceled arguments
DONNA ACETO
on the school board’s appeal of
the Fourth Circuit ruling and sent
the case back to the district court.
(Later in 2017, Sessions would
send all Executive Branch agencies
a memorandum disputing the
Obama administration’s interpretation
that discrimination based
on gender identity was necessarily
prohibited sex discrimination;
in June of this year, on the matter
of employment discrimination, the
Supreme Court rejected Sessions’
view and embraced Obama’s.)
By the time the case got back to
the district court in the spring of
2017, Grimm had graduated and
Gloucester County moved to dismiss
the case as moot. Grimm insisted
that the case continue since
he should be entitled to damages
for the discrimination he suffered
and he would like the freedom to
use the male facilities if he returned
to the school as an alumnus. Later,
he also requested that the school
issue him an appropriate transcript
in his male name identifying
him as male, since he was stuck
in the odd situation of being a boy
with a high school transcript identifying
him as a girl.
Ultimately, the district court
ruled in Grimm’s favor on both
his statutory and constitutional
claims, but the school board was
not willing to settle the case, again
appealing to the Fourth Circuit.
The August 26 ruling is the result.
The case was argued in the
Fourth Circuit before a panel of two
Obama appointees, Judges Henry
Floyd and James A. Wynn, Jr., and
an elderly George H.W. Bush appointee,
Judge Paul Niemeyer (who
had dissented from the original
Fourth Circuit ruling in this case).
In light of the rulings by other
courts of appeals on transgender
student cases and the Supreme
Court’s decision in Bostock v. Clayton
County, Georgia, on June 15 of
this year, holding that discrimination
because of transgender status
is discrimination “because of sex”
under Title VII of the Civil Rights
Act, the result in this new ruling
was foreordained.
Judge Floyd’s opinion for the
panel, and Judge Wynn’s concurring
opinion, both go deeply into
the case’s factual and legal issues
and articulate a sweeping
endorsement of the right of transgender
students to equal treatment
in federally-funded schools
guaranteed under Title IX. Public
schools are also bound by the 14th
Amendment’s Equal Protection
Clause, and the court’s ruling on
the constitutional claim was just
as sweeping.
The court fi rst rejected the
school board’s argument that the
case was moot, since the damages
available for a Title IX violation did
not depend on Grimm still being
a student. The district court had
awarded him only nominal damages,
but that was enough to keep
the case a live controversy, as did
the school’s continuing refusal
to issue him a proper transcript,
which the court also held was illegal.
Both Floyd and Wynn rejected
the school board’s argument
that there was no discrimination
against Grimm because he was
not “similarly situated” to cisgender
boys — they fi rmly asserted
that Grimm is a boy entitled to be
➤ GAVIN GRIMM, continued on p.19
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