Outside the Beltway

Federal Judge Rules In Favor Of Transgender Student In Bathroom Access Case

A Federal Judge in Virginia has handed a significant legal victory to a student who sued their school district because they were barred form using the bathroom of the gender they identify with.

Doug Mataconis · Wednesday, May 23, 2018 · 4 comments

A Federal District Court Judge in Virginia has resurrected a case filed against a Virginia school district by a transgender student who was denied access to the bathroom of the gender with which he identified:

A federal judge in Virginia has found in favor of a transgender student whose efforts to use the boys’ bathrooms at his high school reached the Supreme Court and thrust him into the middle of a national debate about the rights of transgender students.

In an order handed down on Tuesday, Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia denied a motion by the Gloucester County school board to dismiss the lawsuit brought by the student, Gavin Grimm.

The school board had maintained that Mr. Grimm’s “biological gender” was female and had prohibited administrators from allowing him to use the boys’ restrooms. He sued the school board in July 2015, alleging that its policy violated Title IX as well as the equal protection clause of the Constitution.

The board had argued in essence that its policy was valid because Title IX allows for claims only on the basis of sex, rather than gender identity, and that its policy did not violate the equal protection clause.

But Judge Wright Allen disagreed, writing that Mr. Grimm’s transgender status constituted a claim of sex discrimination and that the bathroom policy had “subjected him to sex stereotyping,” violations of the law.

“There were many other ways to protect privacy interests in a nondiscriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms,” she continued. “The Board’s argument that the policy did not discriminate against any one class of students is resoundingly unpersuasive.”

In Tuesday’s order, the judge directed lawyers for both parties to schedule a settlement conference within 30 days.

“I feel an incredible sense of relief,” Mr. Grimm, now 19 and headed to college in the fall, said in a statement after the ruling. “After fighting this policy since I was 15 years old, I finally have a court decision saying that what the Gloucester County School Board did to me was wrong and it was against the law. I was determined not to give up because I didn’t want any other student to have to suffer the same experience that I had to go through.”

In a statement issued late Tuesday, the Gloucester County school board said it was “aware of the District Court’s decision.” It was not clear whether the board planned to appeal.

 Zack Ford summarizes Judge Wright’s opinion:

U.S. District Judge Arenda Wright Allen, an Obama appointee, ruled Tuesday that the school was wrong all along. Borrowing heavily from near-identical cases in Maryland and Wisconsin, Allen concluded that Title IX’s protections on the basis of “sex” extend to individuals on the basis of having a transgender identity.

“This Court joins other courts that have concluded that because the [district’s bathroom] Policy relies on sex-based stereotypes, it is a sex-based classification,” Allen wrote.

The school’s policy had dictated that Grimm could only use the girls’ restroom or one of three single-stall bathrooms — none of which were close to his classes. As a result, he refrained from using the restroom at school, which led to a painful urinary tract infection. He also couldn’t stay long at football games because there was no bathroom at the field he could use.

“Offering restroom alternatives that impose hardships like unreasonable distances to a student’s classroom and increased stigma on a student is inadequate,” Allen wrote. “The location of the bathrooms, coupled with the stigmatization and physical and mental anguish inflicted upon Mr. Grimm, caused harm.”

Allen also dismissed the school’s concerns about other students’ privacy as “conjecture.” Grimm, like Ash Whitaker in the Wisconsin case, “used the boys’ bathrooms for weeks without incident before other adults in the community — not
students — complained of this use.” Trans students pose no threat to privacy, and students who feel they want increased privacy could use the single-stall restrooms without a policy segregating Grimm alone to using them.

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 a 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, the decision by Judge Wright yesterday marked a string of victories that transgender Plaintiffs have seen in the Federal Courts in the past year. Just under a year ago, the Seventh Circuit Court of Appeals ruled in favor of a Wisconsin student who had sued on roughly the same grounds as Grimm in a ruling that found that the student’s rights had been violated both under Title VII and Title IX and that their rights had been violated under the Equal Protection Clause of the 14th Amendment. This was, apparently, the first time that a Federal Court had found that transgender Americans constituted a protected class under the Equal Protection Clause, meaning that laws and policies that discriminate against them must face heightened scrutiny by Federal Courts rather than merely satisfy the so-called “rational basis” test. Two months ago, a Federal District Court Judge in Maryland issued a ruling in favor of another transgender student that roughly followed the reasoning of the Seventh Circuit case.

There have also been a number of victories for transgender Plaintiffs in situations not involving public schools. Just this year, for example, the Second Circuit Court of Appeals and a Federal Judge in Maryland have ruled in favor of transgender Plaintiffs claiming discrimination based on their gender identity in the employment context. Both of these cases were based on interpretations of the Civil Rights Act of 1964, finding that the ban on discrimination in employment based on gender also applied to discrimination based on gender identity. Additionally, over the course of the past year courts in Washington, D.C., Maryland, and Washington issued rulings blocking the Federal Government from implementing President Trump’s order rescinding the Obama era policy that allowed transgender Americans to serve openly in and enlist in the military, relying in no small part on a Rand Corporation study that found that the Obama policy would have no deleterious effect on military readiness or unit cohesion, basing that conclusion in no small part on the fact that similar policy changes in many other countries, including nations such as the United Kingdom, Germany, France, and Israel, had been implemented with no adverse impact whatsoever.

In her ruling, Judge Wright Allen treads on grounds similar to that found in the other cases dealing with discrimination based on gender identity. On the statutory side, for example, she finds that Grimm raises a sufficient claim under both Title VII and Title IX for discrimination based on sex. In doing so, Wright Allen relies heavily on both the recent court rulings in other cases 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 as it was banned 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 the Civil Rights Act. Based on the Price Waterhouse precedent and on the previous court rulings on this issue, Wright Allen found that Grimm 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 because discriminating against him on that bases was, in effect, impermissible gender stereotyping. As I’ve said in the past, I am skeptical of this staturory 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 Allen also found 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 earlier this 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, Judge Wright Allen finds that Grimm’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.

From here, of course, the Grimm case goes to the Fourth Circuit Court of Appeals. Given the previous ruling in this case, though, it seems likely that he will be successful there as well, meaning that this case is ultimately headed for the Supreme Court, although it may not get there until late in the October 2018 term at the earliest. How the Court will feel about the case at that point will depend in no small part on the makeup of the Court, and especially on whether or not Justice Kennedy, who has long been sympathetic to the legal claims of LGBT Plaintiffs, is still on the Court at that time. For now, though, Grimm has won another significant victory, as has the cause of transgender rights.

Here’s the opinion:

Grimm v. Gloucester County School Board by Doug Mataconis on Scribd