Perceptive article from National Law Review, noting emerging consensus on transgender bathroom rights, describes how Supreme Court refused to review a decision of the Fourth Circuit upholding gransgender bathroom rights, in Grimm v. Gloucester County, Virginia:
The Supreme Court's Transgender Bathroom Case Rebuff, What Direction Should School Districts Take?
On June 28, 2021, the Supreme Court denied the Gloucester County School Board’s petition for a writ of certiorari or stated another way denied to hear an appeal from the School Board from a Federal Appellate court. So at this juncture, it appears the Justices don’t seem inclined to intervene in disputes over transgender rights and bathrooms. So what are the implications of the Court’s action or more accurately inaction in Grimm v. Gloucester County School Board?
The Background and Twisting Litigation in Grimm v. Gloucester
Prior to appeal to the Supreme Court, the United States District Court for the Eastern District of Virginia denied a motion by the Gloucester County school board to dismiss the Title IX and Equal protection lawsuit brought by student Gavin Grimm.
In Grimm v. Gloucester County School Board the Plaintiff Gavin Grimm, a transgender student, challenged a school board resolution that required him—and other transgender students—to use the bathroom associated with his “biological gender.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716 (4th Cir. 2016), cert. granted in part, No. 16-273, 2016 WL 4565643 (U.S. Oct. 28, 2016). Grimm sued the school board, alleging that the policy violated Title IX as well as the equal protection clause of the Constitution.
What does Title IX Protect?
Title IX of the Education Amendments of 1972 (Title IX) is a federal law that states in part:
"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
What does the Equal Protection Clause of the Constitution Protect?
The Equal Protection Clause is part of the Fourteenth Amendment to the U.S. Constitution and the part most frequently litigated reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Specifically, the phrase "equal protection of the laws" has been used by the Supreme Court to find constitutional protection in a number of gender and public education related situations.
In 1954 in Brown v. Board of Education, the Court found Constitutional protection against racial discriminationor more specifically by finding the 14th Amendment prohibits states from segregating public school students on the basis of race.
In 1971 the Court applied the equal protection clause to find discrimination based on gender is not constitutional in the administration of an estate in Reed v. Reed.
In 1973 in Roe v. Wade, the Court found protection for reproductive rights against state action in certain circumstances via to the right to privacy contained in the Due Process Clause of the 14th Amendment.(the Due Process Clause is described in more detail below)
In 1978 the Court ruled unconstitutional a university's use of racial "quotas" in their admissions process, but held that in certain circumstances affirmative action programs could be constitutional see University of California v. Bakke
What Does the Due Process Clause of the 14th Amendment Protect?
The Due Process clause of the 14th Amendment which explicitly applies to the states, essentially mirroring the protections of the 5th Amendment, which only applies to the Federal Government , thereby adding additional protections for individual rights from intrusion by the states. The Due Process clause guarantees the following rights from interference by the states:
procedural due process –meaning fairness to all individuals, including the opportunity to be heard by the government, given notice of hearings, and be given a judicial decision with a stated rationale;
the individual rights enumerated in in the Bill of Rights;
and substantive due process, which are certain liberties which the Supreme Court has interpreted as belonging to citizens, with a focus on economic liberties, such as the right to create a private contracts, and includes the right to privacy.
In addition to his Title IX and equal protection clause claims, the plaintiff in Grimm v. Gloucester relied heavily on a Department of Education (DOE) / Office of Civil Rights Letter (OCR) known as a “Dear Colleague Letter” interpreting Section 106.33 (34 CFR 106.33 Comparable Facilities) to require schools to “treat transgender students consistent with their gender identity.” G.G., 822 F.3d at 718.
In response to the Fourth Circuit Court of Appeals decision in Grimm v. Gloucester County School Board, 2016 WL 1567467 (4th Cir. April 19, 2016), on May 13, 2016, the Department of Labor (DOL) and the Department of Education under the Trump Administration issued a joint directive to school districts summarizing “a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations” or another a “Dear Colleague Letter.”
The Fourth Circuit’s majority opinion in Grimm (2106) relied heavily, if not exclusively, on the Obama Era’s DOE’s interpretation of Title IX and that requiring transgender students to use the restroom associated with their biological sex equated to discrimination on the basis of sex.
The school district in Grimm, along with several state attorney generals, petitioned the Fourth Circuit for a hearing before the full panel. The Fourth Circuit denied the and School District appealed to the United States Supreme Court for review and the Supreme Court granted certiorari in 2016, but after the change of administration the Department of Education withdrew the “Dear Colleague Letter”, the Supreme Court opted to not to hear the case and vacated and remanded the case back to the Fourth Circuit.
Grimm then filed an amended complaint, and in 2020, the Fourth Circuit affirmed the district court’s ruling in favor of Grimm. The Fourth Circuit, in its 2020 ruling relied on 2020 landmark Supreme Court case, Bostock v. Clayton County, which held that Title VII’s prohibition of discrimination on the basis of sex necessarily includes discrimination on the basis of sexual orientation and gender identity. The Fourth Circuit extended the Supreme Court’s reasoning in Bostock to Title IX’s analogous prohibition of discrimination on the basis of sex.
The School District once again appealed and the Supreme Court refused to grant certiorari on June 28, 2021, so the underlying 2020 Fourth Circuit opinion stays intact.
What Impact will Grimm v. Gloucester Actually Have?
"As the Fourth Circuit’s decision and the Supreme Court’s denial of certiorari makes clear, the Court’s landmark ruling in Bostock changed the legal landscape surrounding LGBTQ+ discrimination. When Grimm was before the Court in 2016, the underlying Fourth Circuit decision was based on administrative guidance with limited authority. The Fourth Circuit’s most recent ruling, however, was grounded in the Court’s reading of statutory language. Although the Supreme Court explicitly stated that the Bostock opinion did “not purport to address bathrooms, locker rooms, or anything else of the kind,” its decision not to hear the Grimm case allowed Bostock to be extended to provide exactly those protections. In addition, the Biden Administration's March 8 Executive Order and a subsequent memorandum from the DOJ have extended Bostock to the educational context."
Although many institutions have created or are beginning to create policies for transgender students, the long and winding road of the Grimm case shows there are still challenges ahead and changes in direction from the DOL, DOE and OCR with different administrations, can make keeping up with the rules a moving target. As it stands today, revisions to existing policies will call for more clearly-defined inclusivity provisions for the LGBTQ community.
According to Nikki Hatza, an associate in the Philadelphia office of Ballard Spahr with previous experience with the Employment Litigation Section of the U.S. Department of Justice's Civil Rights Division:
"Given the Biden Administration’s guidance and the existing appellate court decisions interpreting Title IX and the Equal Protection Clause to prohibit discrimination on the basis of gender identity, schools should review and adjust their policies as needed to comply."
Per Art Coleman, of EducationCounsel and past Deputy Assistant Secretary for Civil Rights, U.S. Department of Education, who along with his team, last year filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit on behalf of Gavin Grimm:
"The U.S. Supreme Court’s decision not to consider the appeal in the Grimm case is not surprising in light of the unbroken string of recent federal appellate decisions that affirm that the protections of Title IX extend to transgender students. Coupled with recent U.S. Departments of Justice and Education actions that align with those rulings, clear consensus has emerged under federal law.”
The federal court rulings that affirm the extension of Title IX protections to transgender students have continued to affirm the reality of consequential harm to transgender students that occurs when they are denied from full participation and opportunities in education. In the end, the cases really are about the indisputable harm to students that results from lack of equal opportunity—medically, psychologically and educationally. The federal courts—and the Biden administration—have recognized that reality, and won’t countenance it. Because the law doesn’t.
Jessica Clarke, a professor of law and co-director of the George Barrett Social Justice Program at Vanderbilt University believes that Grimm v. Gloucester will cause groups with concerns related to LGBTQ rights to shift their attention from the bathroom issue and served as the impetus for school districts to adopt more trans-friendly bathroom policies.
“The decision not to grant certiorari is important because it did not disrupt the emerging consensus among federal courts--not just the Fourth Circuit--that schools may not forbid transgender students from using restrooms consistent with their gender identities. One factor that has been important in this development is that school districts around the country have adopted trans-inclusive restroom policies without experiencing any of the disruption that was feared. As a result, we are likely to see conservative advocacy groups shift the focus of their attacks on the LGBTQ community from restrooms to other issues.”