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Finally, a Ruling in Landmark Transgender School Bathroom Case

Gender neutral restroom sign on a wooden door that says, "Who cares?"
By Christopher Coble, Esq. on August 14, 2019

Gavin Grimm has been battling the Gloucester County School District about access to bathrooms at his high school for so long that he is now a 20-year-old college student, thousands of miles away. But his case finally appears to be settled, and in his favor.

A federal judge in Virginia ruled last week that the school board's policy of requiring transgender students to use private bathrooms or the ones corresponding with their gender assigned at birth is unconstitutional. "There is no question that the Board's policy discriminates against transgender students on the basis of their gender noncomformity," U.S. District Judge Arenda Wright Allen wrote. "Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go."

Long and Winding Litigation

Grimm's lawsuit was originally filed in 2015. By that time, Gavin had used the boys' restroom for almost two months without any incident, but the board updated its policy, forcing him to use private restrooms (converted broom closets) or the girls' bathroom. His suit was initially dismissed, but the Fourth Circuit reinstated it and issued an injunction in 2016, allowing him to use the bathroom that aligned with his gender identity while the case was being heard in the lower court. The school board then appealed that decision to the Supreme Court.

In the meantime, while the courts were trying to interpret Title IX's meaning on sex discrimination, the White House flipped its guidance on the matter. The Department of Education under Barack Obama administration issued guidance in May of 2016, asserting that students at public schools receiving federal funds must be given access to bathrooms corresponding to their gender identity, and failure to do so would amount to sex discrimination in violation of Title IX. But Donald Trump rescinded that guidance less than a year later.

After that, the Supreme Court vacated the Fourth Circuit's ruling, along with the injunction, which appeared to end the case without any definitive ruling. (The Supreme Court has also recently allowed an opposite school policy, permitting transgender students to use the facilities corresponding to their gender identity, to stand.)

A Perpetuation of Harm

But last week, Grimm finally received what had to be very welcome news:

Mr. Grimm has established (1) that he was excluded from the restrooms at Gloucester High School on the basis of gender stereotypes; (2) the educational institution received federal financial assistance at the time of his exclusion; and (3) improper discrimination caused him harm. For these reasons, summary judgment is GRANTED in favor of Mr. Grimm regarding his claim asserting a violation of Title IX.

The court also ruled that the school's policy violated his constitutional rights under the Equal Protection Clause. And while an injunction allowing him to use the bathrooms of his choice at this point is moot, the court did order the school to update Grimm's school records with his proper gender.

"Parents, teachers and administrators share 'a solemn obligation to guard the well-being of
the children in their charge,'" Judge Allen asserted, and she conceded that the Board may have been trying to do the right thing:

However well-intentioned some external challenges may have been and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand. These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives of our children who rely upon us to protect them compassionately and in ways that more perfectly respect the dignity of every person.

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