The case of Gavin Grimm, the transgender student barred from using the boys’ bathroom at his Virginia high school, returned to court Tuesday before a three-judge panel that seemed divided over whether federal laws protect transgender students from discrimination.
“Turns out no one goes there,” Wynn said of the single-stall restroom Grimm’s school offered as an alternative to the boys’ bathroom he wanted to use. “Is it not a stigma to create a restroom for a particular individual based on their orientation or gender identity?”
Judge Paul V. Niemeyer suggested Congress, not the court, should define the reach of protections against sex discrimination in public schools. He warned about the possibility of transgender girls showering in school locker rooms and competing on female sports teams.
“Everybody knows there’s a problem there,” Niemeyer told Grimm’s lawyer. “It’s not as benign as you make it.”
The few questions from the third judge on the panel, Judge Henry F. Floyd, did not clearly indicate a position.
Grimm graduated three years ago from Gloucester High School, but the legal battle has continued, centered on his alma mater’s policy that a federal judge said violated Grimm’s constitutional rights by denying him access to the boys’ restroom.
The long-running case, at the forefront of the fight for transgender students’ rights nationally, began in 2015 when Grimm sued his school system. The Gloucester County School Board is appealing the District Court ruling that said its policy discriminates on the basis of sex.
The case initially reached the Supreme Court in 2017, but the argument was canceled after President Trump reversed an Obama administration rule that had directed schools to allow students to use restrooms that correspond with their gender identity.
A key question for the 4th Circuit is whether federal protections banning sex discrimination in public schools include protections for transgender students. The Supreme Court has not directly addressed the issue but is expected to announce a decision soon in a pending case about whether federal discrimination laws protect transgender workers. All parties at the 4th Circuit on Tuesday seemed to agree that the high court’s decision would have implications for the outcome in Grimm’s case.
The three-judge panel, meeting by video and phone conference because of the coronavirus pandemic, is reviewing a decision last summer by U.S. District Judge Arenda L. Wright Allen. The judge rejected the school system’s claim that allowing transgender students to use bathrooms matching their gender identities caused privacy concerns for other students.
“The perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand,” Allen wrote in her decision, which declared that Grimm’s rights were violated “on the day the policy was first issued” and until he left Gloucester High, in Hampton Roads.
Grimm’s lawyer, Joshua Block, of the American Civil Liberties Union, told the court in advance of argument that even though Grimm has graduated, the discrimination continues. Grimm, who was born female but identifies as male, is now a 21-year-old college student in California. He uses men’s restrooms in public places and is recognized as male by his family and medical providers.
But, “when he walks through the doors of his high school, he is singled out and told you are different from other boys,” Block said Tuesday.
The single-stall option, he said, was stigmatizing and humiliating — and difficult to access because of its location within the school.
The school board, Block said in court filings, has declined to provide Grimm with a transcript that matches the male sex designation on his revised birth certificate. When Grimm is required to provide a transcript to colleges or potential employers, he has had to provide a document that identifies him as female.
School board attorneys told the court that the restroom policy is lawful in that it accommodated Grimm while considering the privacy concerns of other students and their parents. Grimm’s claims, they say, are no longer valid because he has graduated.
“School personnel always treated Grimm with respect. They accommodated his request to be called by his new name and to use male pronouns,” attorney David P. Corrigan told the court. The only exception, he said, was the restroom policy.
The school board says the law allows for segregated same-sex restrooms and for separation based on anatomical differences between males and females. And the school says it is looking out for students’ privacy interests in not having to “share a restroom with someone from the opposite physiological sex.”
Corrigan acknowledged Tuesday in response to a question from Wynn that the school’s existing policy would mean that Grimm, who is recognized under Virginia law as male, would be allowed to use the women’s restroom.