Law & Courts

High Court Declines to Hear School Board Challenge to Scope of Transgender Student Rights

By Mark Walsh — June 28, 2021 3 min read
Gavin Grimm, who has become a national face for transgender students, speaks during a news conference held by The ACLU and the ACLU of Virginia at Slover Library in Norfolk, Va on July 23, 2019.
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The U.S. Supreme Court, over the dissent of two justices on Monday, declined to take up the appeal of a Virginia school district in a long-running case about the right of a transgender student to use restrooms consistent with his gender identity.

The court’s action in the case involving transgender student Gavin Grimm was not a ruling on the merits of the case. But it does bring a long legal battle to a close and leaves in place a federal appeals court decision that the Gloucester County, Va., district violated both the equal protection clause and Title IX by adopting a policy that barred Grimm from the boys restroom.

“I am glad that my years-long fight to have my school see me for who I am is over,” Grimm, who graduated from Gloucester County High School in 2017, said in a statement released by the American Civil Liberties Union, which represents him. “Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

A panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., had ruled 2-1 in 2020 that both the 14th Amendment’s equal-protection clause and Title IX of the Education Amendments of 1972, the federal law that bars sex discrimination in federally funded schools, protect transgender students from school restroom policies that prevent the students from affirming their gender identity.

The 4th Circuit court majority took account of the then-recent Supreme Court decision in Bostock v. Clayton County, Ga., which held that the prohibition against discrimination “on the basis of sex” including in Title VII of the Civil Rights Act of 1964 protected employees based on sexual orientation and gender identity. The appellate court said the logic of the Bostock decision applied to Title IX.

The school district, in appealing to the high court in Gloucester County School Board v. Grimm (Case No. 20-1163), said the 4th Circuit’s reliance on Bostock was misplaced because Title IX is a “vastly different statute” than Title VII. Title IX allows for sex-separated living facilities on school campuses and its regulations allow for sex-separated restrooms, the district argued.

“A teenager who identifies with the opposite biological sex … deserves and needs everyone’s compassion,” the district said in its brief. But allowing such a teenager “to use multi-user restrooms, locker rooms and shower facilities reserved for the opposite sex raises what this court has acknowledged to be serious concerns about bodily privacy—for the teenager and others,” the brief said.

David P. Corrigan, the Gloucester County district’s longtime lawyer, said the district had no comment about the high court’s action.

Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted review of the case. Alito wrote the main dissent in the Bostock case last term, joined by Thomas, that discussed with dismay what the Title VII ruling might mean for interpreting Title IX’s protection against sex discrimination, particularly in the area of transgender female students’ participation in girls’ and women’s school sports.

Given how much is percolating around the country with transgender student rights in contexts beyond school restrooms, including locker rooms and athletic competitions, some Supreme Court justices may believe that the Gloucester County case was not the best vehicle to address whether Title IX’s bar on sex discrimination works the same way as the court interpreted the sex-bias clause in Title VII.

Josh Block, who represents Grimm for the ACLU, noted that Monday’s action was the third time in recent years that the Supreme Court has declined to review federal appeals court rulings in favor of transgender students.

“This is an incredible victory for Gavin and for transgender students around the country,” Block said in a statement. “Our work is not yet done, and the ACLU is continuing to fight against anti-trans laws targeting trans youth in states around the country.”

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