A federal appeals court on Wednesday held in the long-running case of transgender student Gavin Grimm that his Virginia school district violated the equal-protection clause and Title IX when it barred him from the boys restroom when he was in high school.
A panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., also ruled 2-1 that the Gloucester County district violated Grimm’s rights by refusing to amend his school records after Grimm, who was assigned female at birth, had chest reconstruction surgery and the state amended his birth certificate to “male.”
“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender,” U.S. Circuit Judge Henry F. Floyd wrote for the majority in upholding a series of federal district court decisions in favor of Grimm in 2018 and 2019. “We join a growing consensus of courts in holding that the answer is resoundingly yes.”
The 4th Circuit panel is the second federal appeals court to rule this month that transgender students’ rights under Title IX of the Education Amendments of 1972 are supported by the U.S. Supreme Court’s June decision that federal employment-discrimination law covers transgender workers. A panel of the U.S. Court of Appeals for the 11the Circuit, in Atlanta, ruled 2-1 on Aug. 7 that a Florida district violated Title IX and the equal-protection clause when it barred a transgender male student from using the restroom consistent with his gender identity.
In the new decision in Grimm v. Gloucester County School Board, the 4th Circuit majority agreed that the recent Supreme Court decision bolstered Grimm’s case.
“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.’” Floyd wrote.
The Gloucester County board’s policy “excluded Grimm from the boys restrooms ‘on the basis of sex’” and therefore violated Title IX, the judge said.
Analyzing the case under the 14th Amendment’s guarantee of equal protection, the court said the board’s policy of requiring a transgender student to use either a single-stall restroom or a restroom matching their “biological gender” was not substantially related to its goal of protecting students’ privacy.
“The insubstantiality of the board’s fears has been borne out in school districts across the country, including other school districts in Virginia,” Floyd said. “Nearly half of Virginia’s public-school students attend schools prohibiting discrimination or harassment based on gender identity.”
The majority cited friend-of-the-court briefs filed in support of Grimm by numerous school groups.
Gloucester County “ignores the growing number of school districts across the country who are successfully allowing transgender students such as Grimm to use the bathroom matching their gender identity, without incident,” Floyd said.
Grimm is now a 21-year-old college student, and the 4th Circuit rejected the board’s arguments that his claims regarding the bathroom policy were moot. Because Grimm had amended his original lawsuit to seek nominal damages, his case was still a live controversy, the appeals court said. The court also held that the board’s refusal to update Grimm’s records violated both equal protection and Title IX.
“The board based its decision not to update Grimm’s school records on his sex—specifically, his sex as listed on his original birth certificate, and as it presupposed him to be,” Floyd said. “This decision harmed Grimm because when he applies to four-year universities, he will be asked for a transcript with a sex marker that is incorrect and does not match his other documentation. And this discrimination is unlawful because it treats him worse than other similarly situated students, whose records reflect their correct sex.”
Judge Paul V. Niemeyer dissented, saying that “Title IX and its regulations explicitly authorize the policy followed by [Gloucester County] High School.”
“At bottom, Gloucester High School reasonably provided separate restrooms for its male and female students and accommodated transgender students by also providing unisex restrooms that any student could use,” Niemeyer said. “The law requires no more of it.”
Both Floyd and Niemeyer have been on the panel for various actions in Grimm’s case since it first reached the 4th Circuit in 2016. At that time, the panel ruled 2-1 that courts should defer to informal Title IX guidance issued by President Barack Obama’s administration that called on schools to allow transgender students to use facilities corresponding to their gender identity. Floyd was in the majority and Niemeyer was the dissenter. That opinion was vacated by the U.S. Supreme Court after President Donald Trump’s administration withdrew the transgender guidance.
The new member of the panel for this latest appeal in the Grimm case was Judge James A. Wynn Jr., who had made pretty clear at oral arguments in May that he was inclined to support the student.
In a concurrence to Wednesday’s opinion, Wynn said the Gloucester County board’s policy seemed to favor an “alternative appropriate private facility” for transgender students such as Grimm. Such facilities were akin to “separate but equal” schools and restrooms for Black and white students, said Wynn, who is Black.
“I see little distinction between the message sent to Black children denied equal treatment in education under the doctrine of ‘separate but equal’ and transgender children relegated to the ‘alternative appropriate private facilitites’ provided for by the board’s policy,” Wynn said.
Floyd concluded the majority opinion by noting that many schools have implemented “trans-inclusive policies” without incident, and that adults have been the biggest opponents of such policies, not students.
“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 said. “How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward.”
A version of this news article first appeared in The School Law Blog.