Law & Courts

School Board in Virginia to Pay $1.3 Million in Attorneys’ Fees, Costs in Transgender Case

By Mark Walsh — August 26, 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. A federal appeals court is hearing arguments Tuesday, May 26, 2020, in the case of Grimm who sued a Virginia school board after he was barred as a student from using the boys’ bathrooms at his high school. A judge ruled last year that the Gloucester County School Board had discriminated against Grimm.
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The Virginia school board that for years defended its policy of barring transgender student Gavin Grimm from using restrooms corresponding with his gender identity but ultimately lost in court has agreed to pay $1.3 million in attorneys’ fees and costs to the American Civil Liberties Union.

Meanwhile, in another transgender student’s case, a full federal appeals court this week vacated a panel’s decision in favor of the Florida student and said it would reconsider whether federal law protects students based on gender identity.

In the Virginia case, the ACLU has represented Grimm since the beginning of his case in 2015, when he was a high school student in the Gloucester County district and the school board adopted its restrictive policy.

In June, over the dissent of Justices Clarence Thomas and Samuel A. Alito Jr., the U.S. Supreme Court declined to hear the Gloucester County school board’s appeal of a federal appeals court decision in favor of Grimm. That was the end of the line for the merits of the long-running case, leaving the issue of attorneys’ fees and costs.

The ACLU in July filed its request for $1.3 million with a federal district judge in Norfolk, arguing that it should be awarded attorneys’ fees and costs as the prevailing party, even though Grimm won only nominal damages, with many of the most significant rulings in his case coming after he had graduated high school in 2017.

“Gavin’s case marked a milestone in the development of the law under Title IX and likewise served a significant public purpose, by furthering Title IX’s goal of eliminating discrimination in educational institutions,” the ACLU said in a court filing supporting its fee request.

A panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., 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 Gloucester County School Board initially asked the federal district court for more time to respond to the ACLU’s fee request. But on Thursday, it jointly filed with the ACLU a stipulation in the district court in which it agreed to pay the $1.3 million in fees and costs.

“We are glad that this long litigation is finally over and that Gavin has been fully vindicated by the courts, but it should not have taken over six years of expensive litigation to get to this point,” Josh Block, an ACLU senior staff lawyer who represented Grimm, said in a statement.

Grimm said in the statement, “I hope that this outcome sends a strong message to other school systems, that discrimination is an expensive losing battle.”

The Gloucester County school board said in a statement that its insurance provider “has addressed plaintiff’s request” for attorneys’ fees and costs and that it would have no further comment.

11th Circuit appeals court will reconsider case of Florida student Drew Adams

In the other development affecting transgender student rights, the full U.S. Court of Appeals for the 11th Circuit, in Atlanta, said on Aug. 23 that it was granting the request of a Florida school district to reconsider a panel decision in favor of transgender student Drew Adams.

In July, an 11th Circuit panel ruled 2-1 that a St. Johns County school board policy that barred him from the boys’ restroom after he began presenting as a boy when he entered Nease High School in Ponte Vedra, Fla., in 2015 violated the 14th Amendment’s equal-protection clause.

The panel had revised an earlier opinion that had ruled for Adams on both equal protection and Title IX, with the panel majority suggesting that the more narrow decision was meant to stave off a rehearing by the full 11th Circuit.

In early August, the St. Johns County school board re-submitted its request to the full 11th Circuit for reconsideration, arguing that the equal-protection decision was wrong and the panel’s failure to rule on Title IX “is troubling and left the circuit and the nation in a quandary.”

The full 11th Circuit’s rehearing order was signed by 12 active judges of the full court, without recorded dissent (including any from the two judges in the panel majority).

The reconsideration comes as most courts across the country to rule on the issue in recent years have held that Title IX protects transgender students from discrimination, but also as some states have sought to pass laws barring transgender girls from participating in girls’ school sports.

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