Gender segregation in bathrooms, which some conservatives have predicted for decades would be undermined by sex discrimination laws, has in fact proven to be a persistent target for civil rights litigation in at least one narrow respect: when bathroom access by the transgendered is restricted. The United States Court of Appeals for the Fourth Circuit, which hears federal cases brought in Maryland and Virginia, and three other southeastern states, recently re-addressed the subject as it affected a transgendered public school student in Virginia. The decision -- Grimm v. Gloucester County School Board, No. 19-1952, (Aug. 28, 2020) -- affirmed a lower court judgment in favor of the plaintiff. The case is important not only for school boards in the region, which operate under the same federal laws, but also for its implications about how other state and local anti-discrimination laws may be interpreted in relation to private schools and employers.
The case was brought by a high school student who while born female, increasingly identified as male during childhood, and chose exclusively to wear boys’ clothing when allowed to. The student originally enrolled in high school as female, but revealed his transgender orientation to his parents during freshman year, adopted the male name of Gavin, and began psychotherapy and hormone treatments to complete gender transitioning.
After consultation with school authorities, he was initially allowed to use the boys’ restrooms and was permitted to satisfy his physical education requirements online without the need for locker room use. Eventually, however, after a hue and cry was raised on social media, the local school board convened hearings on the matter, in which Gavin Grimm was subjected to predictable deriding and vilification. Acceding to community pressure, the board then banned him from the boys’ bathrooms, had three unisex bathrooms installed on campus and made them available for him and others to use, and also gave him access to a single-stall restroom in the school nurse’s office. He found this solution to be stigmatizing and inconvenient and therefore, tried to minimize his bathroom use during the day, at the cost of both his psychological and physical health. School authorities also refused to grant his requests to change his gender to male on school records.
Grimm sued during his sophomore year in 2015 and sought a preliminary injunction, claiming that the Gloucester County School Board (“Board”) had unlawfully discriminated against him in violation of both Title IX of the Education Amendments of 1972 and his constitutional right to equal protection. The district court dismissed the Title IX claim based on a regulation implementing the statute that permitted provision of separate toilet, locker room and shower facilities on the basis of sex. The Fourth Circuit reversed, finding the regulation ambiguous with respect to how the transgendered should be considered, and relied on guidance from the Department of Education (“DOE”) during the Obama administration, stating that transgendered students should be treated consistent with their gender identity. Upon petition by the Board, the U.S. Supreme Court granted a writ of certiorari, but vacated and remanded for further consideration because the DOE guidance that the Fourth Circuit had relied upon had been rescinded by the Trump DOE.
The case had been allowed to continue after Grimm’s graduation in 2017 based upon a finding that a live controversy still persisted. Eventually, the matter reverted to the district court, which reconsidered and denied the Board’s motion to dismiss, concluding Grimm had alleged viable claims. Grimm amended his complaint to add allegations that the Board had unlawfully failed to alter his school records to reflect his being male. After discovery, the district court granted summary judgement for Grimm on both his Title IX and equal protection claims, concluding he had been entitled to use school restrooms consistent with his transgender identity and to be enrolled as male on school records.
In the process of the case progressing its way through the courts, a host of LGBT interest groups and several state attorneys general, including of Maryland and Virginia, had been allowed to participate as amici curia; and the Fourth Circuit was inundated with briefs from many well-known firms and organizations. Consistent with that broad-based desire to be heard on the controversial subject, the three judges on the appellate panel each also elected to write a separate opinion, two favoring affirmance and a dissenter advocating reversal.
Judge Floyd wrote the Court’s majority opinion, which summarized the copious background evidence in the case about the extent of gender dysphoria in the population, its psychological impact on those subject to it, including problems arising from bathroom restriction based on “biological gender,” and the beneficial effect of access to restroom facilities consistent with a person’s transgender identity. Judge Floyd also described in detail what he characterized as the “ugly” history of the proceedings before the school board that Grimm had endured, and his opinion was highly critical of the failure to “protect Grimm from the fantastical fears and unfounded prejudices of his adult community.”
On the equal protection claim, the majority concluded that Grimm had been discriminated against based on his transgendered status and that the impact was not mitigated by the fact that all students had access to private single stall facilities and that no student was allowed to use a restroom dedicated to the opposite biological sex. Such ostensible equality of treatment did not conceal or cure the origin of the school’s policy as arising solely due to Grimm’s disfavored status. Judge Floyd also rejected the Board’s contention that Grimm should be viewed as biologically female and, as such, to have been treated the same as other females in being excluded from the boys’ restroom and therefore not discriminated against. Judge Floyd dismissed the Board’s view as premised on an inherently discriminatory assumption that privileges biological sex in determining “gendering” over the opposite gender identity so deeply felt by the gender dysphoric. Such a deeply felt sexual identity is as fundamental a type of non-volitional gender status as is biological gender, thereby, justifying Grimm being viewed as male, as similarly situated to other male students, and improperly singled out for bathroom exclusion.
Judge Floyd further reasoned that based on various aspects of transgendered status, it was a “quasi-suspect” classification, triggering a test of heightened “intermediate” scrutiny for determining the propriety of Grimm’s dissimilar treatment. Under that test, the school board was required to show that its exclusion of the transgendered from restrooms, consistent with their gender identification, was “substantially related to a sufficiently important governmental interest,” and provided “an exceedingly persuasive justification” for the disparate treatment. The Board’s proffered interest -- protecting student bathroom privacy -- was rejected as inadequate under those tests. Grimm had initially used stall facilities in the boys’ bathroom for many weeks without a problem, and the urinals had been fortified with side shields, preventing him from observing boys using them. Similar use of such facilities by the transgendered had been permitted without a problem in other jurisdictions and in other cases. Judge Floyd also found that the board’s justification for not changing Grimm’s status from female to male in his school records – maintaining accuracy – was also insufficient since Grimm’s legal status as male had been changed by court order on his birth certificate and was now his accurate gender.
On Grimm’s claim under Title IX, Judge Floyd concluded that Grimm had been discriminated against “on the basis of sex” under the reasoning of the Supreme Court’s recent decisionIn Bostock v. Clayton County, 140 S. Ct. 1732 (2020), which found that employment discrimination based upon being “homosexual or transgender” was “because of sex” and unlawful. He also concluded that Grimm had suffered harm as a result and been treated worse than other students in that he alone could not use a bathroom corresponding to his gender identity, as that concept should properly be understood. Regulations under Title IX that permitted separate restroom and other facilities on the basis of sex were inapposite, since the issue was not whether separate facilities were permissible, but whether a particular person could use or be excluded from them. Judge Floyd’s rationale for affirming Grimm’s equal protection claim, arising from the Board’s failure to amend his school records, was also found to support Grimm’s Title IX claim arising from the same disparate treatment.
Judge Wynn concurred In Judge Floyd’s opinion, but wrote separately to fortify it on several points. He specifically attacked the Board’s alleged rationale for viewing Grimm as being dissimilar rather than similarly situated with other males – based upon his so-called “biological gender.” Judge Wynn believed that purported status conflated two different ideas – physical sex features, such as genitalia, which are biological, and gender, which in contrast is “a deeply held sense of self.” The Board’s attempted reliance on biological gender presupposes that it could be used neatly to differentiate two classes of transgendered students -- those possessing male and female characteristics – when the transgendered actually display various combinations of both, defying rigid binary classification. In addition, Judge Wynn noted that the privacy interest that the Board claimed to advance – prohibiting bathroom users from having to expose themselves to an intruder of a different gender – was suspect because no exposure was involved. Stalls and urinal shields prevented any such visibility. Moreover, if the interest was simply against having such an intruder present, it would be equally, if not more infringed upon, by sending a transgendered student, such a Grimm, into girls’ restrooms because from all outward appearances , he was male and an apparent intruder. Judge Wynn also condemned the Board’s justifying its treatment of Grimm, based on the option available to all students to use a stand-alone stall, as relying upon the same discredited separate-but-equal justification rejected in relation to racial discrimination. The availability of such facilities to all students did not hide the fact that they were created specifically in response to him and were stigmatic for that reason.
In his dissenting opinion, Judge Niemeyer contended that the error at the heart of the majority’s position was the conclusion that Grimm, as a transgendered male, was similarly situated to so-called biological males, and yet treated differently with respect to equal access to male restrooms. Judge Niemeyer believed that the Board was within its rights to view transgendered males and biological males as materially dissimilar in a manner well recognized by law.
With respect to Title IX, Judge Niemeyer contended that both the statute and its regulations allowed for differentiation based on “sex” in living quarters and toilet, locker room, and shower facilities. For him, the issue was whether that permitted differentiation was intended to depend upon biological sexual traits, or whether it was intended to be complicated by notions of gender identity that might make such differentiation improper, notwithstanding the uniform presence of such biological traits among the affected parties. In 1972, when the statute was passed, “sex” was defined in virtually every dictionary as pertaining to physiological traits and reproductive capacities. In fact, the Bostock decision assumed that the word “sex” had that accepted meaning during the relevant period, and its analysis turned upon different interpretative considerations of what “because of sex” meant in the broader context of Title VII that were not controlling given the carve outs for living facilities, bathrooms and locker rooms under Title IX and its regulations. Accordingly, Title IX must properly be construed as allowing for differentiation on the basis of anatomical sex differences, which justified excluding Grimm from the male bathrooms. That construction is reinforced by the privacy concerns which justified the allowance of different restrooms for the physiologically separate genders:i.e. not having one’s own nakedness exposed to someone with the opposite biological sex present, when we perform intimate bodily functions. To allow Grimm, a biological female, to use facilities lawfully separated for the use of biological males would compromise a separation explicitly authorized by Title IX.
With respect to the equal protection claim, Judge Niemeyer noted that no one disputes the ability of public entities to establish separate restrooms for the biologically distinct genders based on their anatomical differences. While an equal protection claim can be brought when persons who are in all relevant respects alike, are treated differently in a suspect way, he concluded that Grimm was not similarly situated to other males because of his persisting female anatomy. Moreover, the treatment of Grimm was not based on a suspect motivation because it arose from the same motivation that justifies having gender-separate bathrooms to begin with, and which no one challenges as generally unconstitutional: viz., protecting the privacy of the physiologically different sexes. Similarly, providing Grimm with separate stalled facilities does not involve reliance on the discredited separate-but-equal rationale of earlier race discrimination cases because there is no comparable threshold pernicious discrimination that seeks a justification in equivalence of separated facilities. Race can never provide a rationale for separating bathroom facilities, while there are biological differences between the sexes that do justify differentiation in bathroom facilities. While expressing sympathy for Grimm, he believed that any change needed to be legislative and that the judgment should have been reversed
Predictably, on September 9, 2020, the Board petitioned for a rehearing en banc by the full Fourth Circuit. Regardless of how the petition or rehearing, if any, is resolved, the issue is likely to be taken up again by the Supreme Court. Public schools within the Fourth Circuit are best advised currently not to exclude the transgendered from bathrooms consistent with their gender identification. Many boards and schools, of course, have already decided that this is the best approach for the welfare of students even if, not legally compelled. While many state and local anti-discrimination laws address the issue directly by including express bans on di././scrimination against the transgendered, civil rights agencies elsewhere have sought, and will continue, to seek to interpret existing sex discrimination laws as prohibiting discrimination based on gender identity, consistent with the general approach of the panel majority in Grimm.
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