Supreme Court gives transgender student a win in bathroom case

Virginia school board cannot challenge lower court's ruling that it violated Title IX by requiring Gavin Grimm to use a separate bathroom
By: | June 28, 2021

A Title IX case that began with a transgender student’s request to use the boys’ restroom at his Virginia high school will not be heading to the U.S. Supreme Court a second time.

The Court on Monday denied the district’s petition for certiorari in Gloucester County School Board v. Grimm, a case involving a student who was designated female at birth but began transitioning when he was in high school. This means the district will not have an opportunity to challenge the 4th U.S. Circuit Court of Appeals’ ruling in Grimm v. Gloucester County School Board that the district violated Title IX and the 14th Amendment by requiring the student to use a separate bathroom in the nurse’s office.

In its August 2020 decision, the 4th Circuit rejected the district’s attempt to frame its policy of requiring all students with “gender identity issues” to use private, single-stall restrooms as being gender-neutral. Although the district maintained that it prohibited all students from using opposite-sex restrooms and gave all students the right to use private, single-stall restrooms, the 4th Circuit pointed out that the policy was targeted to one group.

“[The district] said what it meant: ‘students with gender identity issues shall be provided an alternative appropriate private facility,'” U.S. Circuit Judge Henry F. Floyd wrote for the majority. That policy, the court explained, violated Title IX and the Equal Protection Clause of the 14th Amendment.

Impact of Title IX guidance

The case has a lengthy and complicated history in federal court, largely due to changes in Office for Civil Right’s Title IX guidance. When the Supreme Court granted the district’s first petition for certiorari in October 2016, the district argued that the 4th Circuit had erred in relying on “Letter to Prince,” in which OCR stated that “when a school elects to separate or treat students differently on the basis of sex … [it] generally must treat transgender students consistent with their gender identity.”

Two months later, however, the U.S. Department of Education withdrew and rescinded Letter to Prince (see Dear Colleague Letter). Based on that rescission, the Supreme Court vacated the 4th Circuit’s initial ruling in the student’s favor and remanded the case reconsideration.

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OCR’s position changed once again after the Fourth Circuit’s August 2020 ruling in the student’s favor. In a notice of interpretation released earlier this month, OCR stated that it will be interpreting “discrimination on the basis of sex” to include discrimination on the basis of sexual orientation and gender identity.

The Virginia school district addressed that notice of interpretation in its supplemental brief. Although it acknowledged that OCR did not say so expressly, the district argued that OCR clearly intended to apply the 4th Circuit’s interpretation of Title IX to restrooms and other “living facilities.” It contended that the Supreme Court’s refusal to hear the case would prevent local school boards from deciding how to handle accommodation requests from transgender students and put those districts at risk of losing federal funds if they failed to comply.

The student argued in his response to the district’s petition for certiorari that the 4th Circuit’s ruling was correct, and that the Supreme Court had no reason to review a decision that aligned with Title IX rulings issued by the 3d, 7th, 9th, and 11th U.S. Circuit Courts of Appeals.

Amy E. Slater, Esq. covers education legal issues for LRP Publications.