Metro Weekly

ACLU asks Supreme Court not to review 4th Circuit ruling in Grimm lawsuit

Grimm's lawyers say court should allow underlying lawsuit over Gloucester County restroom policy to proceed

Gavin Grimm - Photo: Todd Franson

Gavin Grimm – Photo: Todd Franson

Lawyers representing transgender student Gavin Grimm have filed a brief with the U.S. Supreme Court arguing that it should not review an appeals court ruling that paves the way for allowing Grimm to use the boys’ restroom. On behalf of Grimm, the American Civil Liberties Union and ACLU of Virginia sued the Gloucester County School Board after it adopted a policy that required transgender students to use separate, single-stall restrooms.

Due to the ruling in question, Grimm was able to obtain a court order halting Gloucester County from enforcing its preferred restroom policy. But the Supreme Court placed a stay on that order until it decides whether to review the ruling. In its opinion, the majority on the 4th U.S. Circuit Court of Appeals gave deference to the federal government, specifically the U.S. Department of Education’s Office of Civil Rights, in interpreting its own regulations. That means that, based on the current department’s interpretation, refusing to allow transgender students to use the restroom matching their gender identity constitutes sex discrimination under Title IX.

“We are filing our brief early so that the Supreme Court can consider the request for review as soon as possible,” Joshua Block, a senior staff attorney with the ACLU’s LGBT Project, said in a statement. “We hope the Supreme Court rejects the school board’s request to hear the case and that Gavin will finally be able to attend high school without being singled out and stigmatized every time he has to do something as basic as using the restroom. Every day that the stay remains in effect, Gavin loses another day of his senior year that he will never get back.”

In its brief, the ACLU attempts to dismantle arguments previously put forward by lawyers for the Gloucester County School Board. First, it rejects the school board’s request that the Supreme Court overrule precedent (known as the Auer precedent) that gives leeway to federal government agencies in interpreting their own regulations. Conservatives, both on and off the court, are particularly impassioned about that request as they see it as enabling the executive branch of the federal government to assume more power.

“In the past five years, three sitting Justices have called for Auer to be overruled or reconsidered, but a majority of this Court has not expressed interest in doing so,” the brief reads. “There is no special justification for overturning this settled principle of administrative law now.”

The ACLU also notes that the school board has asked the court to weigh in on the underlying question of whether Title IX’s protections can be extended to transgender or gender-nonconforming students. But it argues that the Court should allow the underlying Grimm case and other cases involving transgender access to restrooms to work their way through the courts before making such a decisive, sweeping ruling on Title IX’s scope. 

“The Court should allow the issue to continue percolating in the lower courts until a more appropriate vehicle arrives,” Grimm’s lawyers wrote. “Moreover, the decision below was correctly decided and does not call for the Court’s immediate review. The Department’s interpretation of its own regulation is the correct interpretation, and it is the interpretation that should prevail regardless of whether it receives Auer deference, Skidmore deference, or no deference at all. For all these reasons, the petition for a writ of certiorari should be denied.”

“Gavin has shown tremendous patience and courage throughout this process,” Claire Guthrie Gastañaga, the Executive Director of the ACLU of Virginia, said in a statement. “We hope that the Supreme Court declines to hear the case and allows him to move on with his life and education, free to use the restroom at school that corresponds to his gender identity.”

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

Leave a Comment: