Federal Judge Vindicates Transgender Student in Yet Another Legal Victory

By Mark Joseph Stern, Slate

24 May 18

 

n Tuesday, at long last, Gavin Grimm, a transgender student described as a “human rights leader” by a federal judge, obtained what he set out for years ago: a court order concluding that his school violated his rights under federal law and the United States Constitution by denying him access to the boys’ bathroom because he is transgender. Grimm has already graduated and gone off to college, but on Wednesday, he told me he was delighted by the ruling nonetheless, because “it means that transgender students who come after me at Gloucester High School won’t have to go through what I did.”

Grimm’s struggle against the Gloucester County School Board began in 2014, when the board passed a policy—aimed squarely at him—compelling students to use the bathroom that corresponds to the sex assigned to them at birth. (At the 2014 school board meeting at which Grimm spoke, speakers assailed him as a “freak.”) At that point, Grimm was already transitioning; the state of Virginia would soon issue a driver’s license and birth certificate that listed his sex as male. Even after Grimm completed his medical and legal transition, however, his school identified him as a “biological female” and refused to let him use the boys’ restrooms.

With the help of the American Civil Liberties Union, Grimm filed a lawsuit against the school board in 2015. The 4^th U.S. Circuit Court of Appeals ruled in his favor the next year, but it based its holding on the Obama administration’s guidance prohibiting schools from discriminating against transgender students. In August 2016, the Supreme Court stayed the 4^th Circuit’s decision, and later agreed to hear the case. But shortly after President Donald Trump took office, his administration revoked the guidance at the heart of the 4^th Circuit’s decision. SCOTUS then punted the case back down to the lower courts. Grimm, now 19 years old, has continued to pursue his claims, while the school board has fought them “tooth and nail,” as Grimm’s ACLU attorney Joshua Block told me.

U.S. District Judge Arenda L. Wright Allen’s new ruling gives Grimm everything he had asked for. First, Allen found that Title IX’s bar on sex discrimination in education includes discrimination on the basis of transgender status. The Supreme Court has held that sex discrimination encompasses sex stereotyping—punishing an individual for failing to conform to gender norms. Anti-trans discrimination, Allen wrote, constitutes “gender stereotyping” because the victim is penalized for failing to conform to the sex assigned at birth. Transgender people, Allen explained, citing a similar ruling by a federal judge in Maryland, do not conform to gender stereotypes “by definition.” And by denying Grimm access to the bathroom because of his gender identity, the school board had run afoul of Title IX.

Allen then turned to Grimm’s equal protection claims. Because the school board’s policy subjected Grimm to sex stereotypes, Allen held that it qualified as sex discrimination under the 14^th Amendment, triggering heightened scrutiny. To survive judicial review, such discrimination must have an “exceedingly persuasive justification.” Allen found the school board’s justifications “resoundingly unpersuasive.” The board had argued that Grimm must be segregated from his male classmates—but this reasoning is “based upon sheer conjecture and abstraction.” No student complained about Grimm’s bathroom use before the board intervened; only angry parents seemed perturbed by his presence. The board’s logic was nothing more than a post hoc rationalization designed to mask pure animus.

And, finally, just for good measure, Allen found that transgender people constitute “a quasi-suspect class” under the 14^th Amendment because they have long faced invidious discrimination on the basis of their immutable identity. Government policies designed to disfavor quasi-suspect classes must also survive heightened scrutiny—a hurdle that, once again, the school board’s capricious policy cannot clear.

What’s most remarkable about Allen’s opinion is how extensively it relies upon precedent from federal courts across the country. The U.S. Courts of Appeals for the 6^th, 7^th, and 11^th Circuits have already ruled that anti-trans discrimination qualifies as impermissible sex discrimination. Federal district courts across the country have reached the same conclusion. When Trump attempted to exclude transgender Americans from the military, four separate district courts blocked the policy as, among other things, unconstitutional discrimination on the basis of sex. The overwhelming majority of precedent today counsels that, under various federal statutes and the Constitution, discrimination against transgender individuals in housing, private and public employment, education, credit, health care, and military service is already illegal.

The U.S. Supreme Court could, in theory, wipe out all this precedent with one adverse ruling. But it is difficult to imagine Justice Anthony Kennedy tarnishing his legacy on human rights—and rejecting a theory supported by federal courts across the country—to deprive transgender people of equal dignity. The school board will likely appeal Tuesday’s ruling, meaning Grimm’s fight is not yet over. But the weight of history and precedent is clearly on his side.