The Long Fight of Gavin Grimm

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Gavin Grimm won.

As Pride month draws to a close, the battle of one lone trans man to use the restroom that corresponds with his gender identity is finally over.

It took six years.

On June 28, the Supreme Court declined to hear Grimm’s case or take up the issue of whether the nation’s schools must allow students to use the bathroom that matches their gender identities. Instead the Court let stand the lower court’s ruling that found the policy “unconstitutional.”

The U.S. Supreme Court’s decision reads simply:

“20-1163 GLOUCESTER COUNTY SCHOOL BOARD V. GRIMM, GAVIN

The petition for a writ of certiorari is denied. Justice Thomas and Justice Alito would grant the petition for a writ of certiorari.”

Grimm had filed a federal lawsuit in June 2015, after being denied access to the boys’ bathroom at his public high school. At that time, the Obama administration’s Department of Justice filed a “statement of interest” in which it accused the Gloucester County school board of violating Title IX.

A federal appeals court ruled in Grimm’s favor and the school board appealed the decision to the Supreme Court, which then agreed to take up the case.

But then the Trump administration took over and vitiated the Obama-era status for trans students and bathrooms, with Education Secretary Betsy DeVos taking the opposite stance of Obama. That meant Grimm’s case had to be returned from the Supreme Court to the lower court to start all over again.

This time, the 4th Circuit had the 2020 Bostock v. Clayton County decision as case law to bolster Grimm’s claims. That case found an employer who fires an individual based on their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964.

In finding for Grimm, 4th Circuit Judge Henry Floyd wrote: “The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past.”

The school board disagreed and appealed the Circuit court finding for Grimm. In its case, Gloucester County School Board v. G.G., Gloucester County demanded that the Supreme Court take up the Virginia school board’s request to reinstate a policy prohibiting transgender students from using school bathrooms that reflect their gender identity.

At issue in the case is the scope of Title IX that prohibits schools from discriminating “on the basis of sex.” PGN has been reporting on the Grimm case for years.

It was a victory long overdue for Grimm, who as a high-school sophomore through senior, was required to use either a separate, unisex restroom or a restroom that corresponded to the sex he was assigned at birth. Despite hormone treatments, top surgery, a birth certificate changed by the state to reflect his gender identity and a state ID card also citing his gender as male, Grimm was barred from the boys bathroom at school.

In a statement, Grimm said, “I am glad that my years-long fight to have my school see me for who I am is over. Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education.”

Grimm said, “Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

Josh Block, senior staff attorney with the American Civil Liberties Union LGBTQ & HIV Project, had the following response:

“This is the third time in recent years that the Supreme Court has allowed appeals court decisions in support of transgender students to stand. This is an incredible victory for Gavin and for transgender students around the country.”

It is a limited victory. The Court’s decision not to review an opinion by the 4th U.S. Circuit Court of Appeals is narrow in scope and avoided making firm all-inclusive policy on the constitutionality of equal protection.

Justices Clarence Thomas and Samuel Alito, the most virulently anti-LGBTQ members of the Court, wanted to hear the case next term, but were overridden by the other seven justices.

Like the case of Fulton v. City of Philadelphia, the Court punted taking a definitive and precedent-setting stand on an issue that has become a pivot in the so-called culture wars. The right is obsessed over who is using what bathroom, as they are all things LGBTQ.

While this is a total win for Grimm, it is only a partial win for transgender students on this most private and personal issue. The Court’s stay of the Court of Appeals decision means only that public school students in the mid-Atlantic states covered by the 4th Circuit, as well as states governed by the 7th Circuit and the 11th Circuit, can use the bathroom that corresponds to their gender identity.

It is not a victory for trans students nationwide.

The 4th Circuit covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. The 7th Circuit covers Illinois, Indiana and Wisconsin. The 11th Circuit covers Alabama, Florida and Georgia. Only 11 states are covered by the Grimm ruling.

Though Grimm’s legal battle has ended, the issue of gender identity and so-called “bathroom bills” remains unsettled with 39 states and Washington D.C. still in flux. Among those are Pennsylvania, Delaware and New Jersey, which are all in the 3rd Circuit and thus not covered by the Grimm ruling.

But as PGN reported June 23, the Biden DOJ and the ACLU have teamed to argue anti-trans laws are unconstitutional.

In December 2020, the Supreme Court let another lower court ruling stand on a bathroom issue involving high school students. In Oregon, parents challenged a public school’s policy allowing a transgender student to use the boys bathroom.

In that case, the 9th Circuit court ruled that the school’s policy should stand as it was intended to “avoid discrimination and ensure the safety and well-being of transgender students.”

In writing for the 9th Circuit court, Judge Atsushi Wallace Tashima said,

“A policy that allows transgender students to use school bathroom and locker facilities that match their self-identified gender in the same manner that cisgender students utilize those facilities does not infringe Fourteenth Amendment privacy or parental rights or First Amendment free exercise rights, nor does it create actionable sex harassment under Title IX.”

Chase Strangio was an attorney for Grimm and also for the late Aimee Stephens, one of the plaintiffs in the Bostock case. About the Oregon case, Strangio, deputy director for trans justice with the ACLU’s LGBT and HIV Project, said in a statement at the time, “The decision not to take this case is an important and powerful message to trans and non-binary youth that they deserve to share space with and enjoy the benefits of school alongside their non-transgender peers.”

It is a statement equally applicable to the Grimm case.

But as the ACLU’s Josh Block said of the Grimm ruling, “Our work is not yet done, and the ACLU is continuing to fight against anti-trans laws targeting trans youth in states around the country.”

The Equality Act, which would vitiate these anti-trans policies and laws, passed overwhelmingly in the House in March, but is currently stalled in the Senate. Until it passes, the courts will continue to be the only avenue for trans youth to seek equity and justice.