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Anti-Trans School Restroom Policies Unconstitutional, Court Rules

Gavin Grimm

A federal appeals court has once again ruled in favor of Gavin Grimm, a transgender Virginia student who sued his school district over his exclusion from using the boys’ restrooms.

The U.S. Court of Appeals for the Fourth Circuit Wednesday issued a decision saying the Gloucester County School Board violated federal law and the U.S. Constitution by requiring him to use separate, single-stall restrooms, which “might as well have had ‘Gavin’ on the sign,” as Judge Henry F. Floyd wrote in the majority opinion, which applies not only to Grimm’s district but to trans-exclusionary restroom policies in general within the circuit, which covers Virginia, West Virginia, Maryland, and North and South Carolina. It also sets precedent for other courts to draw on.

Specifically, the school district violated Title IX of the Education Amendments of 1972 — which prohibits sex discrimination in education — and the Equal Protection Clause of the Fourteenth Amendment to the Constitution, the Fourth Circuit ruled. It upheld a ruling that came last year from the U.S. District Court for the Eastern District of Virginia. The school board had appealed that decision.

Grimm, now a 20-year-old college student, first sued the school district in 2015. A different judge on the district court ruled against Grimm that year, but the Fourth Circuit had ruled in his favor in 2016, saying the school district violated his rights under Title IX and the guidelines that President Obama’s administration released on its application. These guidelines advised schools to let trans students use the restrooms and locker rooms consistent with their gender identity, and said schools should use their preferred names and pronouns.

The Supreme Court was set to hear the school board’s appeal in 2017 but decided not to after Donald Trump’s administration revoked the Obama guidelines. It vacated the appeals court ruling and sent the case back to the district court for consideration in the absence of the guidance, meaning it had to be decided based only on the constitutional issues and Title IX, which courts are still free to interpret as they see fit.

In Wednesday’s ruling, the Fourth Circuit opted for an inclusive interpretation of Title IX, and it cited the Supreme Court’s interpretation of another sex discrimination law, Title VII of the Civil Rights Act of 1964, which applies to employment, in June’s Bostock v. Clayton County decision.

“After the Supreme Court’s recent decision in Bostock v. Clayton County … we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex,’” Judge Floyd wrote. “Although Bostock interprets Title VII of the Civil Rights Act of 1964 … it guides our evaluation of claims under Title IX.”

“In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination ‘on the basis of sex,’” he continued. “As the Supreme Court noted, ‘it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.’”

“Grimm’s four years of high school were shaped by his fight to use the restroom that matched his consistent and persistent gender identity,” Floyd added. “In the face of adults who misgendered him and called him names, he spoke with conviction at two Board meetings. The solution was apparent: allow Grimm to use the boys restrooms, as he had been doing without incident.  But instead, the Board implemented a policy that treated Grimm as ‘questioning’ his identity and having ‘issues,’ and it sent him to special bathrooms that might as well have said ‘Gavin’ on the sign. It did so while increasing privacy in the boys bathrooms, after which its own deposition witness could not cite a remaining privacy concern.  We are left without doubt that the Board acted to protect cisgender boys from Gavin’s mere presence — a special kind of discrimination against a child that he will no doubt carry with him for life.”

As Grimm has now graduated, the Fourth Circuit also upheld the district court’s ruling that the school district must update his transcripts to reflect his male gender and provide copies to him.

“The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past,” Floyd wrote toward the end of his opinion, contrasting the Dred Scott Supreme Court decision, which upheld slavery, with Brown v. Board of Education, which struck down school segregation policies, and Bowers v. Hardwick, which upheld antisodomy laws, with Obergefell v. Hodges, which legalized same-sex marriage nationwide. “How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community,” Floyd concluded.

Grimm hailed the decision in a press release from the American Civil Liberties Union and its Virginia affiliate, both of which represented him: “All transgender students should have what I was denied: the opportunity to be seen for who we are by our schools and our government. Today’s decision is an incredible affirmation for not just me, but for trans youth around the country.” 

“Transgender students belong in our schools,” added Josh Block, senior staff attorney with the ACLU LGBT & HIV Project. “The court once again ruled that school’s obligation to create an environment that is safe and welcoming for all students includes transgender students.” 

“For the last five years, Gavin has been fighting for transgender students to ensure no one else deals with the discrimination he faced in high school. The court rightfully stood with him to rule that trans students deserve to go to school with dignity, respect, and equal protection under the law,” said Eden Heilman, legal director for the ACLU of Virginia.

The Trevor Project, which provides crisis services to LGBTQ+ young people and filed a friend-of-the-court brief in support of Grimm, issued a statement from Sam Brinton, vice president of advocacy and government affairs: “Today’s decision in favor of Gavin Grimm is a tremendous victory for transgender equality. When transgender and nonbinary students are denied access to school facilities or documents consistent with their gender identity, they are not only denied basic dignity and respect, but also fundamental human rights. This decision reaffirms that anti-transgender discrimination is, in fact, illegal under the law. The Trevor Project applauds Gavin Grimm and his attorneys for their immense courage and resiliency over the course of this five-year-long battle for justice. Grimm’s leadership has inspired trans youth across our country and this victory will work to save young lives.”

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