The transgender bathroom controversy continues in Virginia

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On 15 July 2016 the Gloucester County School Board in Virginia filed to stay the 4th Circuit’s ruling pending a petition for review by the U.S. Supreme Court.  The petition asks the court to reverse a 2-1 4th Circuit decision in favor of Gavin Grimm—a sixteen-year-old transgender high school student.  Grimm was born as a girl but now expresses the gender identity of a boy.  An en banc panel of the 4th Circuit turned down the school board’s request to reconsider the previous decision by the three-judge panel.

The issue at the heart of the appeal is whether Title IX of the Civil Rights Act requires public schools to allow transgender students access to restrooms that are compatible with their gender identity.  The decision by the 4th Circuit deferred to the Department of Education that references Title IX, which also includes gender identity instead of unilaterally ruling on whether Title IX protects against gender identity discrimination.

The mechanism the court used to do this is “Auer deference,” which derives from Auer v. Robbins, stating that federal courts should show deference to the interpretation of regulations by federal agencies if those regulations are ambiguous.  The 4th Circuit concluded that regulations by the Department of Education were ambiguous as applied to transgender students.  This allowed the court to analyze the Department’s interpretation of the regulation under Auer deference.  Auer deference permits an agency’s interpretation of a regulation to stand so long as the interpretation is reasonable.  The court stated that the Department’s interpretation of the regulation is novel because, until recently, there had not been an agency interpretation on the issue of transgender students and sex discrimination in access to restrooms. That novelty alone was not enough to alter the Auer reasonableness standard.

Grimm, the plaintiff in the suit, is a high school student who was permitted to use the restroom compatible with his gender identity by his high school’s administration.  Two months later, the Gloucester County School Board implemented a policy that banned Grimm from the boys’ restroom after a 6-1 vote.  The school board cited complaints from parents and residents of Gloucester County on why they voted to prohibit transgender students from using the restroom that corresponded with their gender identity.

Grimm’s state identification card identifies him as male.

Grimm responded by filing a complaint alleging that the school board intentionally discriminated against him by violating his rights under the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.  Grimm filed his complaint with representation from the American Civil Liberties Union.

Grimm was diagnosed with gender dysphoria, which is a medical disorder associated with “clinically significant distress caused by an incongruence between a person’s gender identity and the person’s birth-assigned sex.”  Grimm has undergone hormone therapy and lives all aspects of his life as a boy, but has not elected to undergo sex reassignment surgery.  Grimm’s state identification card identifies him as male.

Regulations by the Department of Education implementing Title IX permit separate but comparable facilities for students of different sexes.  The Department of Education’s Office of Civil Rights interpreted the regulation to mean that the school must treat transgender students in a manner that is consistent with their gender identity.

To bring a claim under Title IX, a plaintiff must establish that: (1) the plaintiff was excluded from an educational program because of his sex; (2) that the educational institution was receiving financial assistance at the time of his exclusion; and (3) that the improper discrimination caused Grimm harm.  Title IX specifically states that nothing in the statute may be construed to prevent an educational facility from maintaining separate living facilities for the different sexes, and regulations from the Department of Education characterize those facilities as including toilets, locker rooms, and showers.  The Department’s Office of Civil Rights published a guidance document providing questions and answers on Title IX and single sex classes and extracurricular activities in which it stated that public schools must treat transgender students consistently with their gender identity.

Part of the rationale for the school board’s decision was the fear that allowing Grimm to use the boys’ restroom would “lead to sexual assault in restrooms.” 

Agencies that also provide guidance or regulations that support transgender individuals accessing restrooms that correspond to their gender identity include OSHA, EEOC, HUD, and the Department of Labor.

In its opinion, the 4th Circuit made the distinction that schools should be encouraged to offer gender-neutral restrooms for students who do wish to use a gender-neutral facility instead of a shared sex-segregated facility.  Further, the existence of a gender-neutral facility was not relevant to Grimm’s suit because Grimm did not prefer to use the gender-neutral restroom.

The federal district court for the Eastern District of Virginia originally denied the plaintiff’s motion for a preliminary injunction.  However, once the court of appels vacated the district court’s denial and remanded the case for a re-evaluation of the motion, the district court ordered that the school district allow Grimm to access the boys’ restroom facilities.  Because Grimm’s case was limited to access to the boys’ restroom, the district court’s order was similarly limited and does not extend to access to the boys’ locker rooms.  The U.S. Department of Justice filed an amicus brief in support of Grimm’s appeal.

The school board argued that their bathroom and locker room policy was permissibly based on “biological sex,” or the sex found on a birth certificate.  The school board’s policy states that the use of bathrooms and locker facilities should be limited to the student’s corresponding “biological gender,” while students with gender identity issues will be provided with “an alternative appropriate private facility.”  Part of the rationale for the school board’s decision was the fear that allowing Grimm to use the boys’ restroom would “lead to sexual assault in restrooms.”

However, the plaintiff argued that using the unisex bathroom made him feel stigmatized and that the separate restrooms negatively set him apart from his peers.  Grimm stated that, when he initially began attending school as a boy, he used the nurse’s bathroom due to fear of potential harassment from classmates.  Later, Grimm would describe the experience as inconvenient to his studies and the source of substantial anxiety.  According to Grimm, once he began using the boys’ restroom there was never an altercation or incident the entire time.  When the school board voted to impose the unisex bathroom policy Grimm was told that he would have access to a unisex bathroom the following day at school, but Grimm stated that he was not actually given access to a bathroom at the school until several days later.

Grimm’s case is part of a nationwide flurry of litigation over bathroom access for transgender students.  In May 2016, eleven states sued the federal government, including the department of education, for guidance requiring that transgender students be accommodated by providing access to the bathroom that corresponds with their gender identity.  Because of the novelty of Grimm’s case, the decision by the Supreme Court to accept or deny certiorari could have a legally significant impact on the many active cases that relate to this issue.