School Board Appeals Fourth Circuit Ruling in Favor of Transgender Student
Updated: May 17
By: Debra D. Owen
Date: September 10, 2020
The Gloucester County School Board announced on Wednesday, September 9, that it petitioned the Fourth Circuit Court of Appeals for a review by all judges of the August 26, 2020, ruling by three of the Court’s judges in the long-running case of Gavin Grimm v. Gloucester County School Board. By a 2-1 vote, that ruling held that Fourteenth Amendment equal protection and Title IX of the Education Amendments of 1972 protect transgender students who use restrooms based on their gender identity.
The case began on June 11, 2015, when the ACLU filed suit on behalf of Grimm after the school board passed a policy requiring students to use restrooms that correspond to their biological sex even though Grimm had consistently identified as male, had been clinically diagnosed with gender dysphoria, had begun hormone therapy and had used a boys’ restroom at his school for seven weeks without incident. The federal district court granted the school board’s motion to dismiss but then ruled in favor of Grimm on June 23, 2016 after their initial decision was overturned by the Fourth Circuit Court of Appeals on April 19, 2016.
The school board appealed to the United States Supreme Court, which originally agreed to hear the case but later vacated its decision and ordered the Fourth Circuit to reconsider the case after the Trump administration withdrew guidance previously issued by the Department of Justice on which the Fourth Circuit had relied. The Fourth Circuit subsequently sent the case back to the District Court, which ruled in favor of Grimm on August 9, 2019. The school board appealed again to the Fourth Circuit, resulting in this latest opinion.
After determining that Grimm’s challenges to the school board’s bathroom policy were not moot, the Court’s opinion first affirmed summary judgment on Grimm’s equal protection claims. The Court held that the board’s restroom policy constituted sex-based discrimination that was not substantially related to a sufficiently important government interest, i.e., protecting student privacy. The Court specifically rejected the board’s arguments that that there was no equal protection violation because the policy applied to everyone equally and therefore treated everyone the same regardless of sex and its argument that the board’s treatment of Grimm should be compared to biological girls rather than boys.
The Court further found that the board’s restroom policy violated Title IX, which provides that no person can be denied participation in or benefits of or be subjected to discrimination in an education program or activity that receives federal funding. First determining that the board’s policy was discrimination on the basis of sex because the board could not exclude him from boys’ restrooms without referencing his “biological gender”, the Court went on to hold that Grimm suffered harm because he was stigmatized and isolated when forced to use separate and inconvenient facilities and because he developed painful urinary tract infections due to restroom avoidance as well as stress and suicidal thoughts that led to hospitalization. Thus, Grimm was treated worse than similarly situated students, and therefore discriminated against under Title IX, by a recipient of federal funding.
The ruling is subject to being overturned as a result of the review requested by the school board.
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-------------------------------------------------------------------------------------------------------------------------------  The amended opinion, issued August 28, 2020, is found at https://www.ca4.uscourts.gov/opinions/191952.P.pdf.  Gender dysphoria is a condition characterized by debilitating distress and anxiety resulting from the incongruence between an individual’s gender identity and birth-assigned sex. According to the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders, this incongruence must have persisted for at least six months and be accompanied by clinically significant distress or impairment in social, occupational or other areas of functioning.  After graduation from high school, Grimm also began sex reassignment surgical treatment and had his birth certificate amended by court order to identify his gender as male.  The Court acknowledged that the U.S. Supreme Court’s decision in Bostock v. Clayton County, 140 S.Ct. 1731 (2020), guided its evaluation of Grimm’s Title IX claims. In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination “on the basis of sex” under Title VII of the Civil Rights Act of 1964,  Grimm was expected to use a separate restroom in the school nurses’ office.