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Judge drops part of transgender nondiscrimination lawsuit

Plaintiffs may argue school bathroom policy violates Equal Protection Clause, but not Title IX

Members of the Gloucester County School Board (Credit: Gloucester County Public Schools).

Members of the Gloucester County School Board (Credit: Gloucester County Public Schools).

Part of a lawsuit challenging a bathroom policy adopted by a Virginia school board — as it pertains to a transgender high school student — has been thrown out by the presiding judge. However, the remainder of the lawsuit will be permitted to move forward.

At issue is whether the bathroom use policy adopted by the Gloucester County School Board forbidding the student from using the restroom that corresponds to his gender identity is discriminatory. U.S. District Judge Robert Doumar on Monday indicated he would allow the case against the Gloucester County School Board to proceed to discovery, or the fact-finding process in which lawyers try to gather as much information as possible about the dispute in order to be able to successfully argue the case.

Lawyers from the ACLU, which brought the lawsuit on behalf of rising junior Gavin Grimm, are arguing that the bathroom policy violates the Equal Protection Clause of the U.S. Constitution. Grimm was initially allowed to use the boys’ restroom for two months, without incident, until someone complained. A group of parents, community members and activists affiliated with conservative organizations then swamped the members of the school board with complaints and raised a fuss at a school board meeting. The board then approved a motion requiring transgender students to use the bathroom assigned to their biological sex, or some other type of “alternative private facility,” such as a staff restroom. The ACLU and ACLU of Virginia have sought a preliminary injunction that would allow Grimm to use the boys’ restroom when he returns to school this fall.

Lawyers arguing on behalf of Grimm had also argued that the restroom policy violated prohibitions on sex discrimination under Title IX. However, Doumar dismissed that claim, even though the U.S. Department of Justice recently filed a statement of interest arguing that discrimination based on gender identity constitutes sex discrimination, and the U.S. Department of Education has adopted a similar stance regarding gender identity discrimination.

Despite the dismissal of the sex discrimination claim, ACLU lawyers attempted to put a positive spin on the outcome of Monday’s hearing.

“We are happy that the judge indicated he is likely to allow our equal protection claim to go forward, and we look forward to reviewing his decision once it is issued,” said Joshua Block, senior staff attorney in the ALCU’s Lesbian, Gay, Bisexual, and Transgender Project. “School officials must treat all students equally and may not demean and stigmatize transgender students by relegating them to separate restrooms from their peers.”

“Gavin’s case has the potential to advance the rights of all transgender students in Virginia, and we are proud to stand with him,” Rebecca Glenberg, the legal director of the ACLU of Virginia, said in a statement.

The outcome of the case could affect how other school districts treat transgender students as it pertains to restroom access in particular and in terms of nondiscrimination in general. Similar mobilization efforts by parents and conservative organizations have attempted to intimidate school board members in other counties, most notably Stafford County, where they were successful, and Fairfax County, where the school board passed a trans-inclusive nondiscrimination policy over the objections of many parents and community members.

If successful, the Gloucester County case could allow transgender students in other jurisdictions without nondiscrimination protections to bring legal action against their local school boards. However, if unsuccessful, the lawsuit’s failure could embolden conservatives to attempt to challenge existing nondiscrimination policies in places like Fairfax, or repeal any such LGBT-friendly policies by ousting current school board members in this fall’s upcoming school board elections and replacing them with social conservatives.

In April, Donald Blake, the president of the Virginia Christian Alliance (VCA), told the progressive website ThinkProgress in an interview that his group has partnered with a national conservative legal think-tank and has been promoting policies that would prohibit transgender students from using the restroom that corresponds to their gender identity. Blake said he hoped that Virginia would serve as “ground zero” in what they see as a larger national fight against nondiscrimination protections for gender identity. VCA has even broached the issue as part of their candidate survey, with candidates’ responses being published as part of the organization’s voter guide. LGBT groups on the ground in Virginia fully expect them to lobby the state Senate and House of Delegates for similar trans-restrictive legislation if they are successful in electing more social conservatives to the General Assembly in this November’s upcoming elections.

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John Riley is the local news reporter for Metro Weekly. He can be reached at

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