Fourth Circuit Decision Protecting Transgender Student Rights Stands After Supreme Court Denies Review

On June 28, 2021, the Supreme Court denied the Gloucester County, Virginia School Board’s petition to review Gloucester Co. Sch’l Bd. v. Grimm, No. 20-1163.  The denial leaves a Fourth Circuit Court of Appeals’ s ruling intact, making it unlawful in this jurisdiction (South Carolina, Maryland, North Carolina, Virginia and West Virginia) to prohibit students from using  bathroom facilities that align with their gender identity.  

            The case, which has been winding its way up and down the courts since 2015, started when Grimm was a student in high school.  Shortly after Grimm notified his school that he was a transgender male, the Board enacted a policy limiting bathroom use to “corresponding biological gender.” Under the new policy, transgender students like Grimm were forced to use separate unisex bathrooms. 

            Grimm sued the Board under Title IX (a law prohibiting sex discrimination by schools receiving federal funds) and the U.S. Constitution.  Grimm initially lost, but won on an appeal to the Fourth Circuit. The Board petitioned for review by the Supreme Court, but the case was sent back and subsequently dismissed after the Department of Education i withdrew guidance providing Title IX protections for transgender students. 

            After his case was dismissed, Grimm filed an amended complaint.  Applying the holding in Bostock v. Clayton County, No. 17-1618 (6/15/20), the Fourth Circuit affirmed the trial court’s decision granting summary judgment for Grimm.  The Court explained:

[W]e have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him “on the basis of sex.” … In Bostock, the Supreme Court held that discrimination against a person for  being  transgender  is  discrimination  “on  the  basis  of  sex.” As the Supreme Court  noted,  “it  is  impossible  to  discriminate  against  a  person for  being  homosexual  or  transgender without discriminating against that individual based on sex.” Bostock, 140 S. Ct. at 1741.  That is because the discriminator is necessarily referring to the individual’s sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator’s actions.  See id. at 1741–42.  As explained above in the equal protection discussion, the Board  could  not  exclude  Grimm  from  the  boys  bathrooms  without  referencing his “biological gender” under the policy, which it has defined as the sex marker on  his  birth  certificate.  Even if the Board’s  primary  motivation  in  implementing  or  applying  the  policy  was  to  exclude  Grimm  because  he  is  transgender,  his  sex  remains a but-for cause for the Board’s actions.  Therefore, the Board’s policy excluded Grimm from the boys restrooms “on the basis of sex.”

The Supreme Court’s decision to deny review means the Fourth Circuit ruling stands.  The ruling aligns with a recent announcement by the Office of Civil Rights that it will interpret Section 1557 (addressing healthcare discrimination) and Title IX to prohibit discrimination on the basis of sexual orientation and gender identity, in light of Bostock.


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