In the latest legal development in a case that has bounced back and forth in the Federal Courts for nearly five years now, a Federal District Court in Virginia has ruled in favor of a former student who sued his school district, finding that the district policy barring transgender students from using the restroom that matches their gender identity violates the law:
A federal judge ruled Friday that a Virginia school district’s policy barring a male transgender student from using the boys’ bathrooms violates the United States Constitution, an important victory for transgender rights advocates in a closely watched case.
In a 28-page ruling, Judge Arenda L. Wright Allen of the United States District Court in Norfolk, Va., said that the school district’s policy violated the rights of Gavin Grimm, a former student.
“There is no question that the board’s policy discriminates against transgender students on the basis of their gender nonconformity,” Judge Wright Allen wrote. “Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.”
School bathroom policies vary, sometimes district by district, across the country. Many in recent years have faced contentious legal challenges over which bathrooms transgender students should be allowed to use. Mr. Grimm’s lawsuit against Gloucester County Public Schools in Virginia is among the best known.
Judge Wright Allen’s ruling echoes those in several other courts that have recently ruled in favor of allowing transgender students to use bathrooms corresponding to the gender they identify with.
Yet nationwide, the question is far from resolved. The Supreme Court earlier this year chose not take up an appeal in a similar case. And it is not clear that the Supreme Court would take up any such cases until there are conflicting opinions in lower appellate courts, according to Joshua Block, Mr. Grimm’s lawyer. To date, there have not been any, he said.
Mr. Grimm, 20, attended Gloucester High School from 2013 to 2017. The Gloucester County school board had maintained that Mr. Grimm’s “biological gender” was female, prohibiting administrators from allowing him to use the boys’ restrooms.
Mr. Grimm, who wrote an essay in The New York Times in June about his experiences growing up, said in an interview that Friday’s ruling was “wonderful.”
“It was certainly a victory for the trans community,” he said.
Mr. Block said the ruling applied only to Mr. Grimm, but it would most likely become “persuasive precedent” in other cases. He said the school district’s policy was still in effect
“If another student is subjected to this discriminatory policy, that student can go to court, and has this decision to point to right away,” said Mr. Block, a senior staff attorney with the American Civil Liberties Union.
“Other school districts in Virginia and around the country have been looking to see what happens with this case.”
A lawyer for Gloucester County Public Schools declined to comment on the decision on Friday.
More from The Washington Post:
The constitutional rights of a transgender student were violated when he was barred from using the boys’ restroom at his Virginia high school, a federal judge ruled Friday.
The student, Gavin Grimm, said the ruling sent the message that “discrimination is not legal in America.” But the 20-year-old, who has graduated from the high school where he was banned from the boys’ restroom, acknowledged that the school system could appeal the decision, and it is “likely that this is not the end.”
“We deserve equal rights,” said Grimm, who is studying in California to be a teacher. “I’m going to be doing what I can to fight.”
Gloucester County School Board Chairman William “Jarret” Lee declined to comment Friday night. The board’s attorney, David P. Corrigan, could not be reached for comment.
But in court last month, attorneys for the Gloucester County School Board argued that gender is not a “societal construct” and that Grimm has not undergone sex reassignment surgery and should not be allowed to use the boys’ restroom.
Grimm sued after the school board in 2014 mandated that students use restrooms aligned with their “biological genders.” He argued that the policy violated the 14th Amendment’s equal-protection clause and Title IX, the law prohibiting discrimination on the basis of sex in schools that receive federal money.
The case ascended to the Supreme Court, which was scheduled to hear it in spring 2017. But the justices returned the case to a lower federal court after the Trump administration reversed Obama-era guidance that directed schools to allow students to use restrooms that aligned with their gender identity.
Last year, Judge Arenda L. Wright Allen declined to dismiss the case from the U.S. District Court for the Eastern District of Virginia. The two sides appeared in Allen’s courtroom last week to argue the case after talks to end the bathroom rule broke down earlier this year.
Allen, who struck down Virginia’s ban on same-sex marriage in 2014, rejected the Gloucester system’s argument that allowing transgender students to use the bathroom matching their gender identities caused privacy concerns for other students.
She found the policy harmed Grimm, who felt “stigmatized and isolated” when he had to use separate restrooms. Grimm avoided using the restroom at school and developed a urinary tract infection and experienced suicidal thoughts.
“The perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand,” Allen wrote in her decision, which declared that Grimm’s rights were violated “on the day the policy was first issued” and until he left Gloucester High, in the Hampton Roads region.
Grimm’s case has been bouncing through the Federal Court system for several years now, and while it has seen several successes, it has also suffered several setbacks. Grimm first filed his lawsuit against the school board back in June of 2015, alleging in that Complaint that the school had violated his Constitutional rights and his rights under Federal law in denying him access to the bathroom of the gender that he identified with. While he initially lost at the District Court level, the Fourth Circuit Court of Appeals ruled in Grimm’s favor, finding that there was a basis in the law to support Grimm’s claims and that it was inappropriate for the District Court to dismiss the case in the early stage of pleadings as it had done. That ruling was based in large part on guidance that had been issued by the Obama Justice Department and Department of Education in May of 2016. That guidance took the position that the anti-discrimination laws based on gender as set forth in the Civil Rights Act of 1964, which were extended to education in 1972, covered transgender Americans and should be interpreted as saying that these individuals had the right to be treated in accordance with the gender they identify with even when it conflicts with the gender they were given at birth. Based on this argument, the Obama Administration intervened in a lawsuit involving a Chicago area school district. In that case, the administration had argued that the school district had violated Federal laws when it denied transgender student access to the girls’ bathroom and showers on the ground that they were still biologically and physically male.
The Fourth Circuit decision in Grimm’s case largely followed the argument in the Chicago case followed the guidance from the Obama Administration and the reasoning of the Court in Chicago case. When Grimm’s case made it’s way to the Supreme Court, though, The Supreme Court accepted the case for review, but in the intervening time, the Trump Administration had rescinded the Obama Administration’s policy guidance, which led the Court to dismiss the appeal as moot and return it to the District Court for further proceedings. This ruling is the first significant ruling in the wake of that decision from the high court.
Notwithstanding the fact that the Trump Administration had revoked the policy guidelines, Grimm’s victory is just the latest in a series of rulings that have gone in favor of transgender students over the past several years:
- In August of last year, for example, a Federal Court Judge in Indiana ruled that a transgender student must be allowed to use the bathroom that corresponds to their gender identity.
- Several months before that, in a case somewhat similar to the one that the court dealt with yesterday, a Federal Judge in Oregon rejected efforts by a group of parents to block a school district policy that permits transgender students to use the restroom that confirms to their gender identity.
- Two months earlier, a Federal Judge in Virginia breathed new life into Grimm’s case a transgender student in Glouster County, Virginia who was challenging the school district’s policy that barred him from using the male restroom facilities notwithstanding the fact that he is genetically female. Grimm had previously won his argument before both the District Court and the Fourth Circuit Court of Appeals, but his case was sent back to the District Court by the Supreme Court rather than receiving a ruling on the merits. The new ruling in Grimm’s favor sets the case up for an eventual return to the Supreme Court.
- At the same time as the decision in the Grimm case, the Third Circuit Court of Appeals upheld the policy of a suburban Philadelphia area school districtthat allowed transgender students to use the restrooms that match the gender they identify with.
- Another victory for transgender rights came in December 2017 when a District Court Judge in Illinois ruled in a case similar to the one in Oregon that had been brought by a group of parents seeking to bar a school district from enacting a policy that allowed transgender students to use the bathroom and locker rooms matching their gender identity. In that case, the Judge sided with the school district and the transgender student at the center of the case, and against the parents seeking to overturn the policy.
- In May 2017, meanwhile, the Seventh Circuit Court of Appeals ruled in favor of a Wisconsin student who had sued his school district after it sought to bar him from using the restroom facilities that match his gender identity.
In her ruling, Judge Wright heavily on both the recent court ruling from other jurisdiction involving transgender Plaintiffs and on the Supreme Court’s ruling in a 1989 case called Price Waterhouse v. Hopkins. In that case, the Supreme Court found in favor of a female Plaintiff who had maintained that she had been denied partnership in the firm that employed her because she did not into the idea of what a female employee should look and act like. The ruling was significant for the purpose of anti-discrimination law because the Court ruled that sex discrimination under the Civil Rights Act included gender stereotyping and the action of discriminating against someone because they didn’t fit into some preconceived notion of what a person of a certain biological gender should be like was barred by Federal law.
Based on the Price Waterhouse precedent and on the previous court rulings on this issue, Judge Wright found that the student had asserted a viable claim under Title VII and Title IX in that discrimination against people who identify with a gender different from their biological sex violated those laws because discrimination on that basis was, in effect, impermissible gender stereotyping. As I’ve said in the past, I am skeptical of this statutory interpretation based on the fact that it seems clear that the drafters of Title VII and Title IX, upon further reflection though, and based in no small part on conversations that have taken place in the comment threads of my posts on these cases in the past, I’ve begun to think that the Price Waterhouse precedent, if it stands, does give transgender Plaintiffs a strong case to argue that they fall within the boundaries of the protected class of “sex” as set forth in the relevant civil rights laws. Whether that remains the case will depend in large part on whether or not the argument withstands appeal to higher courts and, ultimately at some point, the Supreme Court.
In addition to the statutory ruling, Judge Wright Allen in Virginia in finding that Grimm’s rights under the Equal Protection Clause of the 14th Amendment had been violated by the policy. As I explained in my post last year on the lawsuit that the N.R.A. filed regarding Florida’s new law barring gun sales to anyone under 21, claims under this provision of the Constitution are evaluated based on differing levels of scrutiny. In this case, Judge Wright Allen agreed with Judge Russell in Maryland that discrimination based on gender identity must be judged based on so-called “heightened” or “intermediate” scrutiny, meaning that the jurisdiction defending the law being challenged must show that it furthers an important government interest by means that are substantially related to that interest. Based on that standard, Wright Allen found that finds that the student’s claims do raise a valid claim that is likely to succeed. As in the Maryland case, it strikes me that the Constitutional argument under the 14th Amendment is much stronger than the statutory claim. Indeed, one could say that even under the low standard of the “rational basis” test, the arguments against allowing transgender students or others to use the bathroom of the gender they identify with do not withstand scrutiny. Under the much more stringent “intermediate” or “heightened” scrutiny standard, the policy certainly doesn’t withstand scrutiny and clearly must be struck down.
As Lyle Denniston notes, Grimm’s victory may be short-lived. Back in April, the Supreme Court agreed to hear an appeal in a case involving employment discrimination against a transgender employee. In accepting that case, the Court specifically agreed to rule on whether or not Title VII of the Civil Rights Act “extends to discrimination based on the status of being transgender, or based on an individual’s failure to conform to a sex stereotype.” If the Court rules against the employee, it could have a significant impact on cases such as Grimm’s going forward. For now, though, this is another win for transgender rights.
Here’s the opinion:
Grimm v. Gloucester County … by Doug Mataconis on Scribd
