The fight over which public school restrooms transgender students can use is winding its way back through the legal system, and it may be heading back to the Supreme Court.
A federal judge in Virginia ruled Tuesday that a lawsuit by a transgender student who was barred from using the boys’ facilities can move forward. Or rather, it can move forward again. The plaintiff, Gavin Grimm, was a central figure of a lawsuit that made it to the Supreme Court but then was punted back down after the Department of Justice switched positions.
Grimm, now 19 years old, sued the Gloucester County school board in Virginia in 2015 after they implemented a policy requiring him to use either the women’s facilities or a single-stall unisex restroom. Grimm had begun the transition to living openly as a male and wanted to use the boys’ restroom. He argued that the school district’s policy violates Title IX of the Education Act of 1972, which forbids sex-based discrimination. But the law also permits schools to set up sex-segregated facilities to protect people’s privacy, so there’s been an ongoing conflict over which way to navigate the landscape is correct.
Under President Barack Obama, the departments of justice and education settled on an interpretation that favored Grimm, based on several federal court decisions—most notably Price Waterhouse v. Hopkins, a 1989 case where the Supreme Court ruled that discrimination on the basis of whether a person complies with gender stereotypes is a form of sex-based discrimination. That case involved a woman claiming she was denied promotions because she wasn’t feminine enough. The Obama administration advised school districts that discrimination against transgender people is also a form of discrimination based on gender stereotypes.
Some states resisted, and we ended up with a collection of differing federal court rulings. The Supreme Court agreed to hear Grimm’s case in 2016. But then when Jeff Sessions took over as attorney general, he rescinded the Obama administration’s guidance letters to schools and decided to leave matters to the states, saying it was the Justice Department’s position that “gender identity” is not a category protected from discrimination by federal law.
The Supreme Court then punted the case back down the legal ladder. This did not end the conflict in any way, and Grimm continues to fight through the courts.
This week’s ruling, from Judge Arenda Allen Wright of the United States District Court for the Eastern District of Virginia, will allow Garvin’s case to move forward again. The judge rejected a request from the school district to dismiss the case.
In the judge’s 31-page ruling (read it here), she notes that the school’s policy stemmed not from complaints by boys that Grimm was in their restrooms, but rather by adults in the community who found out the principal had quietly accepted Grimm’s transition and let him use the boys’ room. She further notes that since Grimm has filed his lawsuit, he has progressed along his transition, taking hormones, surgically altering his body, and getting his birth certificate and state identification legally altered to list his gender as male. The state itself is treating Grimm as a male, even if the school is not.
Note that while the ruling is favorable to Grimm, the judge isn’t actually determining in his favor (though she does seem to agree with his side’s arguments). Rather, the judge ruled that Grimm has enough of a Title IX complaint to continue and that there are enough precedents friendly to Grimm’s arguments to reject a call to dismiss the case.
And so the bathroom battles march on.
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