Gail Deady
Note: The following was originally posted on the blog of the American Constitution Society on April 26, 2016.
By Gail Deady The Secular Society Women’s Rights Legal Fellow
Gavin Grimm is a junior in high school in Gloucester, Virginia. Gavin is a boy but, because he is also transgender, his school district prohibits him from using the boys’ restrooms. He is instead forced to use the girls’ restroom or single-user, gender-neutral restrooms. With the help of the ACLU of Virginia and the ACLU LGBT & AIDS Project, Gavin challenged this policy in federal court as discriminatory. In a landmark decision last week, the United States Court of Appeals for the Fourth Circuit agreed with him.
Under Title IX of the Education Amendments of 1972, educational institutions receiving federal education funds are prohibited from discriminating against students on the basis of sex. There are some exceptions to that general prohibition, such as a regulation allowing schools to designate separate restrooms for male and female students.
In April 2014, however, the Department of Education issued guidance stating that if schools treat male and female students differently, they must treat transgender students consistently with their gender identity.
Gavin came out to his family as a transgender boy in the summer of 2014 and began his transition, which meant living all aspects of his life as a boy. That fall, Gavin enrolled in school as a male student with his new legal name: Gavin. Unsure of how his peers would react to his transition, Gavin initially asked to use the nurse’s restroom.
At first, everything went well. School staff supported Gavin’s transition, and most of his peers accepted him as just another male student. When it became clear to Gavin that he could safely use the boys’ restrooms, he asked for and received school administrators’ permission to do so. Gavin used the boys’ restrooms without any problems for about seven weeks.
Some parents nevertheless objected to the school’s decision to allow a transgender boy to use the same school restrooms as every other boy. At a November 2014 School Board meeting, adults spoke out against Gavin based on misinformation and unfounded fears about transgender people. Gavin also spoke at the meeting, saying he just wanted to use the restroom in peace.
Despite warnings that the policy violated Title IX, the School Board voted in December 2014 to implement a policy requiring students to use restrooms consistent with their “biological gender” and directing students with “gender identity issues” to use single-stall, gender-neutral restrooms. The School Board claimed this policy was necessary to protect the privacy and safety of all students. But what it really did was stigmatize transgender students and imply they are unfit to use the same restrooms as their peers.
With the help of the ACLU, Gavin challenged this policy as discriminatory on the basis of sex under Title IX and the Equal Protection Clause of the Fourteenth Amendment. He also filed for a preliminary injunction to use the boys’ restroom while litigation was pending. The United States filed a statement of interest supporting Gavin’s Title IX claim.
In September 2015, the district court issued an opinion granting the School Board’s Motion to Dismiss Gavin’s Title IX claim and denying his request for a preliminary injunction. The court’s decision refused to give deference to the Department of Education’s interpretation of its regulation permitting schools to have sex-segregated restrooms. Further, it found that discriminating against a student because he is transgender did not constitute sex discrimination under Title IX.
We appealed that decision to the United States Court of Appeals for the Fourth Circuit, and several groups filed amicus briefs supporting Gavin’s case. One brief, filed in support of Gavin on behalf of school administrators from across the country, provided strong evidence that the School Board’s fears – that allowing transgender students to use gender identity-appropriate restrooms in school would lead to coed bathrooms, violate students’ privacy or lead to male students pretending to be transgender to gain access to girls’ restrooms or locker rooms for nefarious purposes – had not materialized in other school districts with transgender-inclusive restroom and locker room policies.
Last week, the Fourth Circuit agreed with Gavin. In a 2-1 decision, the panel held that schools that bar transgender students from using the restrooms matching their gender identity discriminate on the basis of sex in violation of Title IX. The court sent the case back to the trial judge for further proceedings on the preliminary injunction. On April 21, the School Board unanimously voted to seek en banc review.
The Fourth Circuit’s ruling has widespread implications. It is the first federal appeals court to rule on the question of whether Title IX bars bathroom policies that discriminate against transgender students, and it backs up the federal Department of Education’s interpretation of Title IX. It also directly applies to North Carolina’s recently enacted law, HB2, which forces transgender students to use the wrong restroom at school. The ACLU of North Carolina was among several plaintiffs that filed a federal lawsuit earlier this month to overturn HB2 on constitutional grounds, and because it would force schools to violate Title IX. The ruling also sends a strong message to South Carolina, also within the Fourth Circuit, which is considering a similar law.
Most importantly, the Fourth Circuit’s decision sends a strong message that forcing transgender people who are already at greatly increased risks of suicide, harassment, and violence to use the wrong restroom is sex discrimination and should not be tolerated. Neither Gavin, nor any other transgender student, should be humiliated by having his identity disrespected and undermined every time he has to use the restroom at school.