Transgender students gain legal ground but challenges remain

Supreme Court declines to reinstate restrictive school transgender bathroom policy

A Virginia school district could not persuade the U.S. Supreme Court this week to reinstate a policy outlawing a transgender teenage boy from using the men’s bathroom. The court’s refusal to take up the appeal gives a long-awaited victory to Gavin Grimm, who, as a high school student, sued the Gloucester County, Virginia, Board of Education over its policy requiring students to use bathrooms that aligned with their “biological gender.”

However, what the court decision doesn’t do is set a national precedent. That means the debate over the rights of trans students is likely to continue, although it’s shifted from the school bathrooms to the athletic fields.

Georgia was among 30 states this year that considered legislation that defined gender as an athlete’s reproductive biology and genetics at birth. Georgia’s so-called “Save Girls Sports” bill stalled, but eight states approved laws banning transgender women and girls from playing on female teams, especially in high school. Those “Save Girls Sports” laws will likely be challenged in the federal courts, which have been increasingly willing to deem restrictions on trans youths unconstitutional.

For example, the Supreme Court decision lets stand a 2020 ruling by U.S. Court of Appeals for the 4th Circuit that refutes the Gloucester school board’s contention that “Grimm’s gender identity is a choice.” The ruling assails the board’s position that sex-assigned-at-birth overrode Grimm’s medically confirmed, persistent and consistent gender identity.

That same rebuttal could be applied to “Save Girls Sports” bills where lawmakers maintain that transgender girls are not “biological girls.”

Speaking to that argument, Judge Henry Floyd, in the majority opinion, concluded:

The overwhelming thrust of everything in the record — from Grimm's declaration, to his treatment letter, to the amicus briefs — is that Grimm was similarly situated to other boys, but was excluded from using the boys restroom facilities based on his sex-assigned-at-birth. 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." ... 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. How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community.

Grimm was a high school sophomore in 2014 transitioning from female to male when he started to use the boys’ bathroom at this high school, angering some parents who demanded the school board bar him.

At school board meetings in late 2014, Grimm said, “All I want to do is be a normal child and use the restroom in peace, and I have no problem from students to do that, only from adults. The adults are the only people who are trying to restrict my rights. I did not ask to be this way, and it’s one of the most difficult things anyone can face.”

Many speakers at the meeting were unmoved. According to court documents, a speaker called Gavin a “freak” and compared him to a person who thinks he is a “dog” and wants to urinate on fire hydrants. “Put him in a separate bathroom if that’s what it’s going to take,” said another. The school board passed the policy in a 6-1 vote.

That began a long legal battle in which Grimm, represented by the American Civil Liberties Union, argued the ban violated Title IX, which prohibits sex discrimination in schools receiving federal funds.

As the ACLU points out in its summary of the case, “The Board continued to exclude Gavin even after he began receiving hormone therapy (which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair), obtained a Virginia state I.D. card listing his sex as male, underwent chest reconstruction surgery, obtained a court order legally changing his sex to male under Virginia law, and received a new Virginia birth certificate reflecting that his sex is male.”

In 2018, the U.S. District Court for the Eastern District of Virginia ruled in Grimm’s favor on all his claims and said the board policy was illegal, a decision affirmed two years later by the U.S. Court of Appeals for the 4th Circuit.

In a statement, the now-22-year-old Grimm said, “I am glad that my years-long fight to have my school see me for who I am is over. Being forced to use the nurse’s room, a private bathroom, and the girls’ room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”