• Jackson Shields Yeiser


By Debra Owen

June 28, 2021

On June 28, 2021, the U.S. Supreme Court announced its decision not to hear the school board’s appeal in the long-running case of Gavin Grimm v. Gloucester County School Board, leaving in place a Fourth Circuit Court of Appeals ruling in favor of the transgender student. Justices Thomas and Justice Alito would have granted the petition for a writ of certiorari.

The Supreme Court’s decision not to hear the case—for a second time—leaves in place the Fourth Circuit’s opinion that equal protection under the Fourteenth Amendment and Title IX’s prohibition of sex-based discrimination[1] protect transgender students who use restrooms based on their gender identity. The Fourth Circuit opinion is consistent with decisions in the Sixth and Eleventh Circuits as well as guidance from the U.S. Departments of Justice and Education.[2]

The case began on June 11, 2015, when the ACLU filed suit in the Eastern District of Virginia 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 case then wound its way through appeal to the Fourth Circuit Court of Appeals and to the U.S. Supreme Court; was remanded to the Fourth Circuit which then remanded to the federal district court; back through another appeal to the Fourth Circuit and finally, another appeal to the U.S. Supreme Court.

The Court’s decision not to hear the case occurs as states across the country, including Tennessee, continue to enact statutes governing transgender athletes, gender identity curriculum, use of restrooms and changing facilities, and other issues regarding sexual orientation and gender identity. Legal challenges to those laws have already begun and will likely intensify.

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------------------------------------------------------------------------------------------------------------------------------- [1] Title IX of the Education Amendments of 1972 [2] Dodds v. U.S. Dept. of Education, 845 F.3d 217 (6th Cir. 2016); Adams ex. Rel Kasper v. Sch. Bd. Of St. Johns County 968 F.3d 1286 (11th Cir. 202); Grimm v Gloucester County Sch. Bd. 972 F.3d 586 (4th Cir. 2020), cert. denied, June 28, 2021, No. 20-1163; March 26, 2021 Memorandum of the U.S. Department of Justice, Civil Rights Division, regarding the Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972; June 22, 2021 Interpretation of the U.S. Department of Education clarifying the Department’s enforcement authority over discrimination based on sexual orientation and discrimination based on gender identity under Title IX of the Education Amendments of 1972 in light of the Supreme Court’s decision in Bostock v. Clayton County.

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