Schools Cannot Discriminate Against Transgender Students When It Comes To Bathrooms, An Appeals Court Ruled

The decision from the 4th Circuit siding with transgender student Gavin Grimm puts the issue of transgender bathroom use back on track for a US Supreme Court fight.

WASHINGTON — Schools cannot prohibit students from using the bathroom that matches their gender identity, a federal appeals court ruled Wednesday in a significant legal win for transgender rights.

The decision from the US Court of Appeals for the 4th Circuit is the latest development in the yearslong legal saga of transgender student Gavin Grimm, who was a teenager when he first took his Virginia school district to court in 2015 to enforce his right to use the boys' bathroom. Grimm, now 20 years old, has continued to press the case after graduating.

In a 2–1 decision, the court rejected the Gloucester County school board's argument that a policy prohibiting transgender students from using the bathroom that matched their gender identity was needed to protect student privacy. Such a policy amounted to sex-based discrimination in violation of the US Constitution's equal protection guarantee and Title IX, the federal law that prohibits sex discrimination in federally funded education.

"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," Judge Henry Floyd wrote. "How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community."

Grimm, who is represented by the American Civil Liberties Union, said in a statement that the 4th Circuit's decision "is an incredible affirmation for not just me, but for trans youth around the country."

"All transgender students should have what I was denied: the opportunity to be seen for who we are by our schools and our government," Grimm said.

David Corrigan, the lead attorney for the school board, declined to comment.

The decision puts Grimm's case — and the hotly litigated subject of transgender rights — back on track for a US Supreme Court showdown. The justices previously agreed in 2016 to hear the case after Grimm won the first round of litigation in the lower courts but sent it back down for more proceedings after President Donald Trump took office and his administration rolled back protections for transgender students under Title IX adopted by the US Department of Education under the Obama administration.

It's the latest decision in favor of transgender rights since the Supreme Court ruled earlier this summer that LGTBQ workers are protected by federal law against discrimination in the workplace. The 4th Circuit found that the justices' holding in Bostock v. Clayton County that workplace discrimination "on the basis of sex" covered discrimination based on sexual orientation and gender identity also applied in the education context.

Grimm had expressed his male identity by the end of his first year at Glouchester High School. He and his mother informed the school before the start of his sophomore year and sought permission for him to use the boys' bathroom. He did so for seven weeks without a problem, but, as Floyd put it in Wednesday's opinion, "adults in the community caught wind of the arrangement and began to complain." The school board intervened and eventually prohibited Grimm from using the boys' bathrooms.

The school created special single-stall bathrooms for Grimm to use, but they weren't located where he took most classes and he told the court that he felt "stigmatized and isolated." He had multiple urinary tract infections from avoiding the bathroom at school altogether and was at one point hospitalized because of suicidal ideation.

Grimm first filed a lawsuit challenging the decision to bar him from using the boys' bathrooms in June 2015, near the end of his sophomore year. Under the Obama administration, the Department of Education had released a guidance document that said schools had to "treat transgender students consistent with their gender identity" under Title IX.

The 4th Circuit previously ruled in 2016 that the Title IX guidance document was enough to allow Grimm's Title IX arguments against the school board to go forward. The Supreme Court then agreed to hear the case but sent it back down after the Trump administration rescinded the Obama-era guidance.

Grimm graduated from high school in 2017. He continued to press his case against the school board, and a federal judge in Virginia ruled in August 2019 that Grimm's constitutional rights had been violated by the bathroom policy as well as the school board's failure to issue records that reflected his correct gender identity. The school board appealed.

The school board argued that its bathroom policy — which said that all students could use private, single-stall restrooms but could not use a bathroom "of the opposite sex" — wasn't sex-based discrimination because it applied equally to all students. Floyd wrote that was like arguing racially segregated bathrooms weren't discriminatory if they applied to everyone equally and there was also the option of a "race neutral" bathroom.

"No one would suppose that also providing a 'race neutral' bathroom option
would have solved the deeply stigmatizing and discriminatory nature of racial segregation; so too here," he wrote.

Judge James Wynn Jr. joined Floyd's majority opinion and wrote his own, concurring opinion that continued Floyd's comparison of the situation to past racial segregation.

"No less than the recent historical practice of segregating Black and white restrooms, schools, and other public accommodations, the unequal treatment enabled by the Board’s policy produces a vicious and ineradicable stigma," Wynn wrote.

He continued later: "I am left to conclude that the policy instead discriminates against transgender students out of a bare dislike or fear of those 'others' who are all too often marginalized in our society for the mere fact that they are different. As such, the policy grossly offends the Constitution’s basic guarantee of equal protection under the law."

The court held that the school board was wrong to treat Grimm's gender identity as a "choice" in arguing that he was in a different position from cisgender boys.

"[E]mbedded in the Board’s framing is its own bias: it believes that Grimm’s gender identity is a choice, and it privileges sex assigned-at-birth over Grimm’s medically confirmed, persistent and consistent gender identity," Floyd wrote. He continued farther down: "Adopting the Board’s framing of Grimm’s equal protection claim here would only vindicate the Board’s own misconceptions, which themselves reflect 'stereotypic notions.'"

As for the school board's privacy argument, Floyd wrote that the "insubstantiality of the Board’s fears has been borne out in school districts across the country" that ban discrimination or harassment based on gender identity. The court also concluded that the board's policy was the result of "misconception and prejudice" against Grimm.

Floyd wrote: "The Board’s proposed policy was concocted amidst a flurry of emails from apparently concerned community members and adopted in the context of two heated Board meetings filled with vitriolic, off-the-cuff comments, such as referring to Grimm as a 'freak.' ... One would be hard-pressed to look at the record and think that the Board sought to understand Grimm’s transgender status or his medical need to socially transition, as identified by his treating physician."

Judge Paul Niemeyer dissented, writing that the school board's policy was "appropriately justified by the needs of individual privacy, as has been recognized by law."

"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. The law requires no more of it," Niemeyer wrote.

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