The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school seeking to use the bathroom consistent with his gender identity.
The School Board is appealing an August 2020 decision by the Fourth Circuit Court of Appeals, Gloucester County School Board v. Grimm, which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the Fourteenth Amendment by refusing to let him use the boys’ restroom facilities at the high school.
The Supreme Court had actually granted a petition for certiorari — which is when one side seeks permission from the Supreme Court to review the case — at an earlier point in the case. In 2016, the Fourth Circuit ruled that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute. The narrowly-framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students should be entitled to be dealt with by their schools consistent with their gender identity.
Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.
Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his correct name. That ruling that was upheld by the Fourth Circuit on August 26, 2020, then denied a motion for rehearing on September 22.
The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims. But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, since President Joe Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.
After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX. However, President Biden’s January 20 executive order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students. Indeed, in his executive order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.
The question presented by the Gloucester County petition states, “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?” This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his executive order.
The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review. Since that time, Justice Gorsuch has replaced Justice Antonin Scalia, Justice Brett Kavanaugh has replaced Justice Anthony Kennedy, and Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg, generally moving the Court to a more conservative tilt. While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up. The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.
Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU. Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.
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