In a highly anticipated decision, the United States District Court for the Eastern District of Virginia has rejected a school board’s motion to dismiss a lawsuit brought by a transgender former student over the school system’s bathroom policy, which required the student to use the bathroom corresponding to the biological sex to which he was born and not the sex to which he identifies.  In Grimm v. Gloucester County School Board, 2018 WL 2328233 (E.D.Va. May 22, 2018), Judge Arenda L. Wright Allen held that the facts as alleged in the amended complaint were sufficient to allege a cause of action for a gender stereotyping claim under Title IX of the Education Amendments of 1972.  The Court rejected the school board’s contentions that Title IX only allows for claims on the basis of sex, rather than sexual identity, and that gender identity and sex, under Title IX, are not equivalent.  

Title IX provides that no person “shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program receiving Federal financial assistance.”  20 U.S.C. § 1681.  Drawing on case law involving disparate treatment and sex stereotyping under Title VII of the Civil Rights Act of 1964, the Court noted that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  Instead, students should be afforded the right to use bathrooms that correspond to their gender identity.

In issuing the Grimm decision, the Eastern District of Virginia joins the District of Maryland and several appellate courts in recognizing Title IX claims of discrimination under the theory of gender stereotyping.  Similar claims under Title VII have been recognized by the First, Second, Third, Seventh, and Ninth Circuits.  The decision follows the February 22, 2018 action by the U.S. Department of Education to withdraw Obama era policies and guidance addressing transgender issues. As this area of law continues to evolve, educational institutions subject to Title IX should revisit bathroom policies in order to avoid legal action.