In yet another setback for Virginia transgender teen Gavin Grimm, the 4th U.S. Circuit Court of Appeals has sent his lawsuit against the Gloucester County School Board back to the district court to determine if the case is moot.
Grimm’s lawyers had hoped to argue his case before the 4th Circuit in September, maintaining that, even though he has since graduated from high school, the case is still relevant because of the impact that Gloucester County’s discriminatory restroom policy could have on other transgender students who attend Gloucester High School or will in the future.
But a three-judge panel on the 4th Circuit issued a unanimous order sending the case back to the lower district court, in essence taking a pass on whether Grimm’s case was still relevant.
“Because all of the prior litigation was conducted while Grimm was a student, the parties have presented us with nothing more than unsupported assertions regarding Grimm’s continued connection to his high school and the applicability of the school board’s policy,” Judges Paul Niemeyer, Allyson Duncan, and Henry Floyd wrote. “We remand this to the district court for the limited purpose of resolving, in the first instance, whether this case has become moot.”
As it stands, Gloucester County is one of only three counties in the state of Virginia with an explicit across-the-board ban on allowing transgender children to use restrooms that match their gender identity. Instead, students are asked to use a neutral single-stall bathroom, such as in a nurse’s office, or the bathroom that matches their biological sex at birth.
Now, U.S. District Judge Robert Doumar will be tasked with determining whether Grimm, as an alumnus of the high school, has enough of an affiliation to it to continue challenging the restroom policy.
Grimm’s lawyers have argued that his “future attendance at alumni and school-community events” constitutes enough of a connection to the school to continue challenging the restroom policy. The school board argues that unless Grimm states a “particular intention to return to school after graduation,” his alumni status makes the case moot, as the policy does not necessarily apply to alumni.
Doumar will specifically be ruling on the the preliminary injunction that was issued to stop the school from enforcing its policy, which was halted from going into effect by the Supreme Court. If Doumar determines that the case is still pertinent, the 4th Circuit can consider whether to hear the argument over the injunction or not.
Regardless of what is decided, Grimm will still be able to move forward with his case at the district court level, where Doumar will be tasked with deciding whether Grimm’s rights, either under Title IX, or under the Equal Protection Clause of the Fourteenth Amendment, were violated when the school barred him from using the boys’ bathroom. It’s just a much more circuitous route than Grimm and his lawyers had anticipated.
“Gavin Grimm has waited more than two years to have his day in court, and it is disappointing that he will have to wait a little bit longer,” Joshua Block, Grimm’s lawyer with the American Civil Liberties Union, said in a statement. “We’ll continue to push this case forward to ensure that Gavin — and other transgender students across the country — can attend school without being stigmatized by these sorts of harmful and discriminatory policies.”