4th Circuit: Students Must Be Allowed to Use School Facilities According to “Gender Identity”

In a case filled with progressive ideology and politics, the federal Fourth Circuit Court of Appeals (based in Richmond) has once again ruled that a biological girl can choose to use the boys’ bathroom in school. It may not, however, have the last word.

The case involves Gavin (not birth name) Grimm, who sued the Gloucester County School Board in 2015 after the board had adopted a policy requiring students to use bathrooms based upon their biological sex. Prior to that policy, Gavin had used a separate bathroom, but felt stigmatized by using it. When the school started allowing Gavin to use the boys’ washroom, many parents objected on the basis of their children’s right to privacy, and the result was the new policy.

While the case was pending in Norfolk’s federal district court, the Obama Administration issued a “Dear Colleague” letter to public schools giving its position on school bathrooms for “transgender” students. In the letter, the Obama Administration wrote that if schools do not allow students to use bathrooms consistent with their self-proclaimed gender identity, they would lose their Title IX federal funds. In spite of this threat, the Gloucester County School Board persisted in defending itself and won. In dismissing the case, the federal district judge ruled that the Obama Administration’s interpretation of Title IX was wrong, since Title IX specifically authorized separate boys and girls facilities and only required that they be of equal quality.

Grimm appealed to the Fourth Circuit, and in a 2-1 decision, the Fourth Circuit reversed, ruling that the Obama Administration’s “Dear Colleague” letter should be followed. Gloucester County appealed to the U.S. Supreme Court, but before the Court could decide the case, the new Trump Administration issued its own “Dear Colleague” letter and withdrew the Obama Administration’s guidance (yes, elections truly have consequences). As a result, the Supreme Court sent the case back to the lower courts to consider the Trump Administration’s guidance.

Grimm had already graduated from high school by this time, so a preliminary question was whether the case should be dismissed for mootness (any court decision perhaps no longer applied to Grimm). A new federal district judge let the case go forward and ruled in favor of Grimm, awarding small damages, attorneys’ fees (that had to be huge!), and directing the School Board to modify Grimm’s school records. The case was again appealed to the Fourth Circuit, and the Fourth Circuit in another 2-1 decision last week (August 26) agreed with the district court, ruling in part that the Supreme Court’s Bostock decision (that ruled that “sex” discrimination in Title VII includes also sexual orientation/gender identity discrimination) should be applied to Title IX (something that Justice Alito warned about in his Bostock dissent). The court also ruled that Gloucester County violated Grimm’s equal protection under the law by treating Grimm differently than others, which of course Grimm is by definition.  In the majority opinion, the court devoted over 20 pages to a discussion of Grimm’s “transgender” status, both physically and psychologically. As noted by the dissent, this revealed the court’s effort to effect policy rather than applying the law. As noted by the dissent, it is Congress’ job to make policy, and the courts’ to apply the law, and the law here is that Title IX specifically permits separate bathrooms in schools, and does not state that students can use the one of their choice merely by claiming to be a particular sex.

This decision by the Fourth Circuit is binding only on public schools in Virginia, Maryland, North and South Carolina and West Virginia. Although locker room facilities are different than bathrooms, our guess is that a court will rule locker rooms to be sufficiently similar to bathrooms and therefore apply the Grimm decision to them.  It is less clear as to whether this case will be applied to boys participating in girls’ sports.

Given the fact that the Norfolk federal district court and the Fourth Circuit has each ruled twice on this case, will the Supreme Court also consider this case for the second time?  We don’t know.  What we do know, however, is that the Gloucester County School Board has shown great perseverance in upholding the privacy of its high school students.