On Tuesday, a federal judge heard arguments in a four-year-long legal battle over whether the Gloucester County School Board discriminated against Gavin Grimm, a transgender alumnus of Gloucester High School, when it refused to allow him to use the boys’ restroom.
Judge Arenda L. Wright Allen, of the U.S. District Court for the Eastern District of Virginia, heard arguments relating to two issues: 1) whether Gloucester County’s policy restricting trans students to using facilities that match their biological sex violates Title IX’s prohibitions on sex-based discrimination; and 2) whether the Gloucester County School Board can be compelled to change the gender marker on Grimm’s official school transcript.
Grimm, who has long been recognized by family, friends and acquaintances as male, has been able to change the gender marker on his birth certificate to reflect his gender identity, and obtained a Virginia court order in 2017 declaring him a male, reports The Washington Post.
Grimm’s attorney, Joshua Block, of the American Civil Liberties Union, argued in court that because Grimm is legally recognized by the government as a male, the school board should be required to change the gender marker on his transcript — and allow him to use the male bathroom during alumni events. Block also asked the court to rule that the school board violated Grimm’s constitutional rights, under both the Equal Protection Clause of the Fourteenth Amendment and Title IX.
Block further argued that Grimm experienced “pain and discomfort” from not going to the bathroom for extended periods of time, because the single-stall restrooms that he was allowed to use weren’t always close to class. Grimm sometimes felt like his “bladder was going to burst” and eventually suffered a urinary tract infection, Block said.
Block also argued Grimm experienced rejection and stigma because of the restrictions placed on his restroom use, which highlighted his gender identity and made him a target of derision. That humiliation was compounded after graduation, when the school board refused to change the gender marker on his transcripts, thus causing him “distress” when he is forced to “out” himself as transgender due to the inconsistent gender marker.
But David Corrigan, the attorney for the Gloucester County School Board, told the court that gender is not a “societal construct,” reports the Richmond Times-Dispatch. Even though Grimm has undergone chest reconstruction surgery and hormone therapy, and is legally recognized by the commonwealth as a male, the school board considers him a woman due to his assigned sex at birth. As such, it will not change the gender marker on Grimm’s transcript to “male.”
In response to a question from Allen about whether the board had the authority to deny the validity of a court order, Corrigan asserted that Grimm hasn’t undergone gender confirmation surgery, and thus remains female.
Corrigan also argued that the school board treated Grimm with respect, and even offered him the option of using single-stall restrooms (which had previously been broom closets) in lieu of the girls’ restroom. But Grimm refused those alternative options.
Allen, who is best known for overturning Virginia’s ban on same-sex marriage, is expected to issue her ruling in the coming weeks. She has previously ruled in his favor twice, refusing a request by the school board to dismiss Grimm’s lawsuit, and ruling that Grimm can sue to have the gender marker on his transcript changed.
Should Allen determine Grimm’s civil rights were violated by the school board’s policy, her decision could potentially influence whether transgender students in Virginia public schools are treated according to their gender identity. That decision would then likely be appealed to the 4th U.S. Circuit Court of Appeals, which has the power to issue a sweeping decision — as it did once before, though using different legal rationale — affecting schools in Maryland, West Virginia, and North Carolina, as well as Virginia.
Grimm, who informed school authorities of his transition in 2014, was allowed to use the boys’ restroom for a brief period of time, but was then barred from boys’ facilities after parents and community members complained. At their urging, the school board passed a policy restricting students to using the restroom of their biological sex at birth, unless they opted to use one of the school’s single-sex restrooms — either in the nurse’s office or one of the converted broom closets. Grimm then sued the board in 2015, alleging his constitutional rights had been violated.
A federal judge sided with the school board, but on appeal, the 4th Circuit Court of Appeals ruled in Grimm’s favor, citing Obama administration guidance allowing transgender students to be treated according to their gender identity, including with respect to restroom use.
The U.S. Supreme Court was slated to hear the case in 2017, but canceled the hearing after the Trump administration rescinded the Obama-era guidance, sending the case back to the lower courts for rehearing.
LGBTQ advocates have since argued that the courts should address the broader issue of whether anti-transgender discrimination is inherently a form of sex-based discrimination, and are hopeful that Allen will agree with that sentiment.