The Supreme Cour has declined to hear a case from Virginia where the lower courts ruled in favor of a male transgender student who alleged that special accomodations, including a single use bathroom, were a violation of law and that the student must be allowed the full use of male bathroom facilities.
We haven’t covered the case since its early days, when we noted:
To briefly summarize, Gavin Grimm (or GG as he is referred to in court documents) is a transgender male. This means that the sex at birth was female, but he identifies as male. According to court documents, Grimm “lives all aspects of his life as a boy” but has not had sex reassignment surgery.Prior to the start of his sophomore year of high school, Grimm and his mother informed the Gloucester County School Board that he was a transgender boy. By all accounts the Board was exceedingly accommodating. For about seven weeks (and with his school’s permission), Grimm utilized the boys’ room without incident. Eventually, however, students took note of the fact that Grimm was a transgender boy, and some were less than comfortable with the arrangement.In response, the school board devised a policy whereby all students would either need to 1) utilize bathrooms that correspond with their sex assigned at birth; or 2) utilize one of several “unisex” or gender-neutral bathrooms. Grimm filed this law suit to challenge that policy.
NBC News summarizes the complicated legal history of the case:
Grimm originally went to court in 2015, arguing that the school board’s policy made him feel ashamed and isolated, and the 4th U.S. Circuit Court of Appeals, based in Richmond, ruled in his favor. It said refusing to let students use bathrooms corresponding to their gender identity would violate the federal law.
That ruling cited an Obama-era Education Department letter that said “a school generally must treat transgender students consistent with their gender identity.” The appeals court found that to be a reasonable interpretation of Title IX, and the school district appealed to the Supreme Court.
But when the Trump administration rescinded the Education Department letter in 2017, the justices said they would not hear the case and vacated the appeals court ruling. So Grimm refiled his lawsuit and won again in the lower courts, leading to this current appeal to the Supreme Court.
Two things have changed since the first time the case came before the justices. The Supreme Court ruled last year that a federal civil rights law bans employment discrimination on the basis of gender identify, and now the Biden administration has interpreted that ruling as applying to Title IX as well.
The Supreme Court case docket page contains the Petition, which framed the Question Presented as follows:
QUESTION PRESENTEDAlthough Title IX prohibits schools from discriminating “on the basis of sex,” 20 U.S.C. §1681(a), it expressly permits them to provide separate living facilities, including restrooms, for the different sexes. 20 U.S.C. §1686; 34 C.F.R. §106.33. This protracted case began when Gavin Grimm, a biological female who self-identifies as male, challenged the local school board’s decision to require him to use either a unisex restroom or a restroom assigned to members of his biological sex, i.e., girls. Four years ago, this Court granted certiorari in this case after the Fourth Circuit deferred to an unpublished letter from the Department of Education, asserting that Title IX requires schools to treat students consistent with their gender identities rather than their biological sex. After a new Administration withdrew that letter, the Court vacated and remanded. The district court and the Fourth Circuit then held that both Title IX and the Fourteenth Amendment’s Equal Protection Clause forbid schools from denying transgender students access to the restrooms assigned to the opposite biological sex. Following yet another election, the current Administration has announced it intends to enforce that position nationwide.The question presented is:Does Title IX or the Equal Protection Clause require schools to let transgender students use multiuser restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?
Grimm’s opposition Brief reframed the Question Presented as follows:
QUESTION PRESENTEDWhether a school board policy prohibiting a transgender boy from using the same multi-user school restrooms as other boys violates Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., or the Equal Protection Clause of the Fourteenth Amendment, when the evidence shows that the policy subjects that student to separate and unequal treatment.
Today the Supreme Court released its Order List, refusing to hear the case, with Thomas and Alito indicating they would have taken the case.
20-1163 GLOUCESTER COUNTY SCHOOL BOARD V. GRIMM, GAVINThe petition for a writ of certiorari is denied. Justice Thomas and Justice Alito would grant the petition for a writ ofcertiorari.
Until further notice, which SCOTUS does not want to give, “on the basis of sex” means on basis of “gender identity” across a broad spectrum of laws, not just for employment discrimination statutes ruled on in the Bostock case.
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