Through its long-standing engagement with GLSEN, a national nonprofit dedicated to promoting and supporting LGBTQ+ inclusive schools, EducationCounsel has authored numerous amicus briefs along with Willkie Farr & Gallagher LLP on behalf of GLSEN, the National PTA, the American School Counselor Association, and the National Association of School Psychologists (referred to as “amici” below) in the U.S. Supreme Court and several federal circuit courts of appeal. EducationCounsel is a mission-based education consulting firm affiliated with Nelson Mullins that combines significant experience in policy, strategy, law, and advocacy to drive improvements in the U.S. education system.

While equitable access to school restrooms may seem unimportant and tangential to some, being able to use the restroom that matches his gender identity has been the plight of Gavin Grimm, and to an increasing number of transgender and gender non-conforming individuals, for many years. His journey continues with the Fourth Circuit Court of Appeals hearing oral arguments on his case late last month — for the second time.

Last year, EducationCounsel filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit on behalf of Gavin (Grimm v. Gloucester Country School Board). Gavin, who identifies as transgender, is a former student of Gloucester County Schools and has been fighting for relief from a policy that prevented him from using bathrooms and locker rooms that corresponded with his identity.

Grounded in substantial peer-reviewed research and the experience of school districts that have successfully provided inclusive environments and full facilities access to transgender and gender non-conforming students, the amici brief illustrates the consequential harms (affecting health, well-being, and success in school) that transgender and gender non-conforming peers suffer when not provided fully inclusive school environments.

Gavin has been fighting for equal access since 2015, when he first filed suit against the Gloucester County School Board (G.G. v. Gloucester County School Board). Gavin’s case eventually made it to the U.S. Supreme Court in 2017, but the Court ultimately decided to not hear the case because of the current administration’s decision to rescind the Obama-era guidance on transgender and gender non-conforming students, which Gavin’s argument relied so heavily on. The Court remanded Gavin’s case back to the lower courts.

In early 2019, Gavin temporarily prevailed in his four-year fight for a safe, equitable, and affirming learning environment when the U.S. District Court for the Eastern District of Virginia ruled in Gavin’s favor and found that the Gloucester County School Board’s policy “discriminates against transgender students on the basis of their gender identity.” The Court found that the segregation of transgender students and their forced use of individual restrooms “undoubtedly harm[s]” students:

“Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.”

Gavin’s case continues, and his fight is far from over. But his bravery has sparked change around the country, with an increasing number of school districts adopting policies that are supportive, affirming, and inclusive for LGBTQ+ students — all grounded in medical, scientific, and education research and practice.

EducationCounsel has worked to support transgender students and the schools that support them in other cases, as well (see below). Through our relationship with GLSEN and its other national organizational partners, we continue to provide strategic, policy, and legal guidance through engagement with states, districts, and other partners to promote the adoption of inclusive and affirming policies.

Along with Nelson Mullins’s LGBTQ+ Ally and Affinity Group, we take pride in the opportunity to do so.

Additional Amicus Cases in Federal Circuit Courts

• In Doe v. Boyertown Area School District (3rd Circuit), the Boyertown school district implemented an inclusive policy that allowed transgender and gender non-conforming students to use the bathroom or locker room that matches their identity. A suit was filed against the school district claiming the policy infringed upon the right to privacy of cisgender students. The case was appealed through the U.S. Court of Appeals for the Third Circuit, which ruled that the school district’s policy did not harm cisgender students. In 2018, this decision was appealed to the U.S. Supreme Court, which denied the appeal in 2019. The denial to hear the case allowed Boyertown to fully implement its policy and move one step closer to providing a safe, inclusive learning environment for all students. Our amicus brief in that case is here.
• Parents for Privacy v. Dallas School District No. 2 (9th Circuit) is a case similar to Boyertown, in which the Dallas School District adopted an inclusive policy for the district’s transgender and gender non-conforming students. An organization, representing parents and students allegedly harmed by the policy, filed suit against the school district claiming the policy violates the rights of cisgender parents and students. A District Court dismissed the case, but the dismissal was appealed to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit issued its opinion in February 2020 in favor of Dallas School District and cited the work of amici briefs, including our own. The Court wrote, “Amici highlight the importance of the policy for creating a safe, non-discriminatory school environment for transgender students that avoids the detrimental physical and mental health effects that have been shown to result from transgender students’ exclusion from privacy facilities that match their gender identities.” Our amicus brief in that case is here.
• In Adams v. the School Board of St. Johns County, Florida (11th Circuit), Drew Adams, a transgender teen, filed suit against his school district after he was prohibited from using the bathroom and locker room that match his gender identity. Similar to Gavin, Drew faced isolation from his peers and was forced to use only one select individual restroom due to the district policy. Drew’s case is currently before the U.S. Court of Appeals for the 11th Circuit, after a District Court decision in favor of Drew was appealed. The case is currently awaiting oral arguments with the Eleventh Circuit. Our amicus brief in that case is here.