30 June 2021

Supreme Court Won’t Hear School Transgender Bathroom Case

On Monday, the United States Supreme Court denied certiorari in Grimm v. Gloucester County School Board, a case involving a transgender student – Gavin Grimm – who was banned from using the school restrooms consistent with his gender identity.  Justices Thomas and Alito would have granted certiorari and would have heard the case, but they were outnumbered by their colleagues on the country’s highest bench.  The result is that the earlier decision of the Fourth Circuit Court of Appeals is the law for that region – Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Despite a messy procedural history which dates back several years and includes a prior denial of certiorari by the Supreme Court, the basic principle to be extracted from the Grimm case is that Title IX, which prohibits discrimination on the basis of sex, applies to transgender students.  More specifically, Grimm stands for the proposition that restroom policies that separate transgender students from their peers, and denial of providing transgender students with academic transcripts accurately reflecting their sex / gender identity, violate Title IX.  The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution similarly protects transgender students from discrimination.  The Court of Appeals reasoned that the school board’s policy of requiring transgender students to use either a single‑stall restroom or a restroom matching their “biological gender” was not substantially‑related to the goal of protecting students’ privacy.  The school district at issue adopted its policy at the same time that many schools and municipalities around the country were adopting so-called “bathroom bills.”

The Fourth Circuit joins a growing number of courts that have ruled in favor of transgender students following last summer’s Supreme Court decision in Bostock v. Clayton County, wherein Title VII was found to protect employees against discrimination on the basis of sexual orientation or gender identity.  We can expect more courts to rule similarly over the next several years.  Given the Supreme Court’s denial of certiorari for Grimm, a review of the issue at the highest level may not occur unless other appellate courts break rank and cause a circuit split.  In the meantime, schools and universities subject to Title IX should heed the trajectory of the law in this area when evaluating issues relative to treatment of students based on sexual orientation and gender identity.