What the Supreme Court's refusal of a Virginia bathroom case means for trans kids

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The decision 'affirms that transgender students are protected by Title IX,' said HRC president Alphonso David.

The Supreme Court's decision on Monday not to hear the case of Gloucester County School Board v. Gavin Grimm was a big win for LGBTQ rights, legal experts and advocates say. They call the denial of the school board's petition to the court a positive step in the fight against the torrent of anti-equality bills that have been introduced and enacted in the states this year.

Transgender student Gavin Grimm sued the school board of Gloucester County, Virginia, in 2015, alleging it had altered its policies to bar him from using boys bathrooms. The American Civil Liberties Union, which represented Grimm, notes:

When Gavin Grimm came out to his school as a boy who is transgender, his school board adopted a discriminatory new prohibiting boys and girls "with gender identity issues" from using the same common restrooms as other boys and girls. The new policy directed Gavin to an "alternative appropriate private facility" instead. Throughout the rest of high school, Gavin was forced to use separate restrooms that no other student was required to use. That degrading and stigmatizing policy singled Gavin out as unfit to use the same restrooms as every other student.

The case wound through the courts for years, including a prior appeal to the Supreme Court in 2017, which sent a decision in Grimm's favor back to the U.S. Court of Appeals for the 4th Circuit for review in accordance with changes to transgender protections made by the Trump administration. The Supreme Court's decision on Monday holds in place that decision.

In August of 2020, shortly after the Supreme Court's ruling in Bostock v. Clayton County, that Title VII prohibitions against discrimination in employment on the basis of sex apply to discrimination against LGBTQ people, the 4th Circuit Court decided again in favor of Grimm, holding that the school board's policy violated Title IX of the Education Amendments Act of 1972.

Fourth Circuit Judge Henry Floyd wrote in his opinion, "In the Title IX context, discrimination 'mean[s] treating that individual worse than others who are similarly situated.'"

He added, "Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender. Unlike the other boys, he had to use either the girls restroom or a single stall option. In that sense, he was treated worse than similarly situated students."

Grimm, now 22, tweeted after the court's decision not to hear the case, "After 6 years. Nearly my entire highschool career and the first 4 years of adulthood. Happy Pride."

The ACLU tweeted on Monday, "This is the third time in recent years that SCOTUS has allowed appeals court decisions in support of trans students to remain."

"The decision to deny certiorari affirms that transgender students are protected by Title IX," stated Human Rights Campaign president Alphonso David.

Sasha Buchert, a senior attorney at Lambda Legal, said, "It sends a clear signal to schools across the country that they're not going to be a resource for them to enshrine their discrimination."

She added, "I think that prior to the court not granting certiorari, there's been a lot of schools that felt like they could get away with enforcing and inflicting really discriminatory policies on transgender students. But there's clearly not a thirst for that in the arguments that they've been making." 

Buchert said that although it's possible that the issue of bathroom access for transgender students could get to the Supreme Court again eventually, she doesn't believe it will happen very soon, and that opponents of LGBTQ equality are arguing, in light of Bostock, that just because the court said that Title VII of the Civil Rights Act of 1964 protects transgender workers, that does not mean Title IX protects transgender students.

"That is completely incorrect, and the lower court held similarly," she said.

The Biden administration has interpreted Bostock as having legal implications beyond employment. On June 16, the U.S. Department of Education's Office for Civil Rights issued a "notice of interpretation" that made it clear it would enforce Title IX protections for LGBTQ students in accordance with Bostock.

Buchert said that the Supreme Court's decision not to hear the case is a positive development for the fight against anti-trans discrimination in school sports as well. Tennessee, Arkansas, Alabama, Florida, Mississippi, West Virginia, and Montana all enacted bills banning transgender athletes from playing on the team of their gender this year. South Dakota Gov. Kristi Noem (R-SD) issued two executive orders in March to enforce a prohibition on transgender girls and women's access to sports teams consistent with their gender at the K-12 and college levels.

In May, the ACLU brought a lawsuit against West Virginia for its sports ban law.

"I think the most direct impact is with regard to the legislation that was passed that prohibits trans kids from playing sports consistent with their gender identity," Lambda's Buchert said. 

Grimm told the American Independent Foundation that bathroom policies and laws discriminating against trans people are about so much more than bathrooms.

"I'm thinking to myself that they are forcing me to go here because they perceive that there is something so wrong with me that I do not deserve to be in the general population with my peers," he said. "That's a statement that has long-lasting impacts on young people. It's unacceptable. It isn't just about the bathrooms, because the impact is never just the bathroom."

Grimm added, "The bathroom isn't their problem either. It's legislating trans people out of public life."

Published with permission of The American Independent Foundation.