A federal appeals court appeared divided Tuesday on whether federal law requires a school district to allow a transgender high school student to use restrooms consistent with his gender identity.
A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., heard about 45 minutes of online arguments in the long-running case of Gavin Grimm, who is now a 20-year-old college student but whose suit asks the Gloucester County, Va., school district to pay nominal damages and to change his school records to reflect his change in gender identity.
“There was clearly nothing in the record that suggest Congress, when it enacted [Title IX of the Education Amendments of 1972], was thinking of a transgender person” when it barred discrimination “based on sex,” said Judge Paul V. Niemeyer. “Isn’t this better for Congress to answer?”
At issue is a policy adopted by the Gloucester County school board in 2014 that limited male and female locker rooms and restrooms to the “corresponding biological genders” and said students with gender identity issues would be offered “an alternative appropriate private facility.”
Grimm, who was born female but began to identify as male and informed school officials at the start of his sophomore year. The school allowed him to use the boys’ restrooms until the school board intervened with its policy, which steered Grimm toward using a single-stall, unisex restroom. Grimm challenged the policy as a violation of Title IX and the 14th Amendment’s equal-protection clause.
“These separate facilities were not only separate, they were unqual,” Joshua A. Block, Grimm’s lawyer with the American Civil Liberties Union, told the 4th Circuit panel. “They were stigmatizing and humiliating.”
Grimm’s case drew nationwide attention in 2016 when he U.S. Supreme Court agreed to use the case to decide whether courts should defer to guidance issued by President Barack Obama’s administration that called on schools to allow transgender students to use facilities corresponding to their gender identity.
But when President Donald Trump’s administration withdrew that guidance in 2017, the Supreme Court returned Grimm’s case to the lower courts, which have considered the more fundamental questions of whether Title IX and the equal-protection clause protect transgender students.
A federal district judge issued a series of rulings in favor of Grimm in 2018 and 2019. Judge Arenda L. Wright Allen of Norfolk, Va, held that Title IX and the equal-protection clause cover transgender students and that the Gloucester County school board’s policy violated both.
David P. Corrigan, a Richmond lawyer representing the Gloucester County district and school board, told the 4th Circuit panel that the text and history of Title IX does not support the notion that the term “sex” in the statute encompasses gender identity.
“Sex is a binary concept,” Corrigan said during the argument. “You have males and females.”
The school board “supported the transition of Gavin Grimm,” he added, using his preferred name and pronouns. “The sole issue is the restroom policy.”
Judge James A. Wynn Jr. pressed Corrigan on whether the single-use restroom the school district offered Grimm was a “separate but equal bathroom.”
“It’s not separate but equal because it is available to everyone,” Corrigan said.
Wynn, who is African American and noted that he had grown up in the era of battles over desegregation in his native North Carolina, said, “That’s like saying a black school is open to everyone, but you never had a white student going to a black school during the separate but equal period. ... I know what I’m talking about.”
Wynn appeared to sympathize with the challenges faced by Grimm and other transgender students.
“Everything we know [is] that it’s stigmatizing to be excluded from facilities that everyone else uses, especially when the school board says your presence would make other people uncomfortable,” Wynn said.
But the legal question in the case was “difficult for us,” he said.
Niemeyer repeatedly pressed Block about how Grimm’s claims of unequal treatment should be analyzed, such as by comparison to boys, girls, or other transgender students. He raised concerns about transgender athletes seeking to compete in categories corresponding to their gender identities and not their birth genders.
The third member of the panel, Judge Henry F. Floyd, appeared to have asked a few questions but did not reveal his leanings. However, in 2017, Floyd joined a brief opinion related to a procedural development in Grimm’s case that lauded the student as someone joining a list of “brave individuals ... who refused to accept quietly the injustices that were perpetuated against them.”
Tuesday’s argument was conducted over video but only the audio was available to the general public.
The participants seemed to agree that a pending Supreme Court decision on whether the protection against sex discrimination in employment under Title VII of the Civil Rights Act of 1964 covers transgender status could be relevant for the same question regarding students under Title IX. A decision in that case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, is expected by July.
Both in a brief and in Tuesday’s session before the 4th Circuit panel, Corrigan briefly offered arguments that Grimm’s case is moot because he is out of high school and only seeking nominal damages. Those arguments were rejected by the trial court and seemed to get little traction with the circuit court judges.
Grimm, in court papers, argues that his claim for nominal damages keeps his case a live controversy. And he contends that the Gloucester County school system’s refusal to update his transcript and school records to reflect that his birth certificate now recognizes him as male is a separate violation under Title IX and the equal-protection clause.
A decision by the 4th Circuit panel is expected to take several months.
A version of this news article first appeared in The School Law Blog.