A Virginia school district on Friday asked the U.S. Supreme Court to decide whether schools must allow transgender students to use restrooms consistent with their gender identity.
The appeal came in the long-running case of transgender student Gavin Grimm, who was barred by a policy of the Gloucester County school district from using the boys’ restroom at his high school. A federal appeals court ruled last year that the district’s policy violated Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools, and the 14th Amendment’s equal-protection clause.
In its appeal in Gloucester County School Board v. Grimm, the Virginia district acknowledges that several federal appeals courts have joined with the one that ruled in Grimm’s case, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., in favor of a broad reading of transgender student rights under Title IX and the equal-protection clause.
And the district cites an executive order signed by President Joe Biden during his first week in office that declared Title IX to protect students on the basis of gender identity. The court rulings and the Biden order amount to a “nationwide policy” that deprives school districts such as Gloucester County from tailoring restroom and locker room policies that would also protect the privacy rights of cisgender students, the district said in its brief.
According to the 4th Circuit and the Biden administration, the district argues in its brief, “even schools that lack sufficient facilities or resources to ensure the bodily privacy of all their students are still [ITAL] required by Title IX and the Fourteenth Amendment to allow biologically male teenagers into multi-user girl’s restrooms, locker rooms, and showers, and vice versa.”
The 4th Circuit panel said last year that Grimm’s Title IX sex-discrimination claim was bolstered by the Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga.. In that case, the high court held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 covered sexual orientation and gender identity in the workplace. In Grimm’s case, the 4th Circuit said that the district’s “bathroom policy precluding Grimm from using the boys’ restrooms discriminated against him ‘on the basis of sex.’”
The Gloucester County district argues that 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 argues.
The district also argues that the 4th Circuit’s equal-protection ruling has far-reaching consequences, and that Grimm’s case remains a good vehicle to decide an issue that is being debated nationwide. (Although Grimm graduated from Gloucester High School a few years ago, his suit seeks damages and both sides continue to fight over Grimm’s gender classification in the school district’s permanent records.)
Grimm’s case was granted review by the Supreme Court in 2016, based on an earlier 4th Circuit ruling that the district had violated Title IX and that courts should defer to the interpretation of the federal statute by President Barack Obama’s administration. When President Donald Trump’s administration withdrew the Obama Title IX guidance, the Supreme Court sent Grimm’s case back to the lower courts.
The American Civil Liberties Union issued a statement from one of its lawyers and from Grimm, its client, expressing disappointment in the school district’s decision to take the case back to the Supreme Court.
“It is disappointing that after six years of litigation, the Gloucester County School Board is still digging in its heels,” said Josh Block, a senior staff attorney with the ACLU. “Federal law is clear: Transgender students are protected from discrimination. Gloucester County schools are no exception.”
Grimm said in a statement, “I graduated four years ago—it is upsetting and disappointing that Gloucester County continues to deny who I am. Trans students in Gloucester County schools today should have the respect and dignity that I was denied.”
The ACLU will file a formal response to the district’s appeal sometime this spring, and it is likely the Biden administration would chime in as well.