Public School Policies for Transgender Students

Facts of the Case

Gavin Grimm was identified as female at birth, but growing up, he always knew he was a boy. He preferred boys' clothing, related to male characters, and felt joy when others identified him as male. In September 2013, he began attending Gloucester High School, a public high school in Gloucester County, Virginia. He was enrolled as a female.

In April 2014, he disclosed to his mother that he was transgender. At the end of his freshman year, Mr. Grimm changed his first name to Gavin and expressed his male identity in all aspects of his life. After conversations with a school counselor and the high school principal, Mr. Grimm entered sophomore year living fully as male, and used the boys' bathrooms for weeks without incident. Once word spread, however, parents railed against the Gloucester County School Board (the Board), who responded by adopting a policy under which students could only use restrooms matching their “biological gender.”

Additionally, the Board voted to build single-stall restrooms as “alternatives” for students with “gender identity issues” and approved updates to the existing restrooms to improve general privacy for all students. The single-stall bathrooms were far from Mr. Grimm's classes, causing him to be late for class. He described being excluded from the boys' bathroom as “alienating” and “humiliating,” and that using the single-stall restroom made him feel “stigmatized and isolated.” Mr. Grimm practiced bathroom avoidance, leading to urinary tract infections, and he was hospitalized for suicidal thoughts.

Mr. Grimm continued his transition, including hormone therapy and chest reconstruction surgery. He had his sex legally changed by the Gloucester County Circuit Court, and received a new birth certificate from the Department of Health, listing his sex as male. When he provided the school with his new documentation, however, the Board refused to amend school records to identify his gender as male.

In 2015, Mr. Grimm unsuccessfully sued the Board, alleging the Board's bathroom policy violated the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972. The district court dismissed Mr. Grimm's claims; upon his appeal, the appellate court reversed. Due to a change in a Guidance issued by the Department of Justice regarding transgender students, the Supreme Court of Virginia vacated the appeals court decision and remanded for reconsideration in light of the shift in agency perspective.

Upon graduating high school, Mr. Grimm filed an amended complaint, incorporating recent factual developments regarding his gender transition. He also added a claim that the Board's refusal to update his gender on his school transcripts was also in violation of Title IX and the Equal Protection Clause. The new complaint did not seek compensatory damages or injunctive relief, only nominal damages and declaratory relief. The Board filed a motion to dismiss for failure to state a claim, which was denied on the basis that transgender discrimination claims are actionable on the basis of a gender-stereotyping theory.

In 2019, the district court granted Mr. Grimm summary judgment on both claims. The Board appealed on the following grounds: Mr. Grimm's claims pertaining to the restroom policy were moot, and that Mr. Grimm's lawsuit regarding his school records was premature, as he had not exhausted his administrative remedies available under the Family Educational Rights and Privacy Act of 1974 (FERPA).

Ruling and Reasoning

The Fourth Circuit rejected both grounds of the Board's appeal. The Board contended that the court did not have jurisdiction over the matter because Mr. Grimm's claims were moot since he did not seek injunctive or compensatory relief. The court held that even if a plaintiff's injunctive claim has been mooted, the case is not moot, as long as the parties have a concrete interest in the litigation outcome. This is true even when the claim is for nominal damages, as is common in cases concerning civil rights.

The court also rejected the argument that Mr. Grimm was required to exhaust his administrative remedies. The court noted that, unlike the Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e (2013)), which first demands “proper exhaustion” through administrative review before pursuing judicial relief, FERPA does not contain this explicit exhaustion requirement. Further, the court noted that exhaustion is not required “when the gravamen of the suit is disability discrimination in violation of other federal laws” (Grimm, 606).

The court then turned to the merits of Mr. Grimm's claims. To the claim that the restroom policy violated equal protection, as applied to him, the appeals court noted, echoing the district court's opinion, that this policy does not withstand heightened scrutiny. The court held that the policy merited heightened scrutiny because the bathroom policy rests on sex-based classifications and because transgender people constitute at least a “quasi-suspect” class. The court explained a sex-based classification is only “quasi-suspect” because, although a person's sex frequently bears no relation to their ability to perform or contribute to society, the U.S. Supreme Court has previously recognized in United States v. Virginia, 518 U.S. 515 (1996), that inherent differences between the biological sexes might provide appropriate justification for distinctions. This is opposed to a race-based classification, which is “clearly suspect.”

The court further elaborated that in determining whether transgender persons constitute a quasi-suspect class, four factors were considered: historical discrimination; a defining characteristic of the class that bears a relation to its ability to perform or contribute to society; whether the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics; and whether the class is a minority lacking political power. The court found each factor satisfied for transgender persons.

The court noted that, to survive heightened scrutiny, the Board's policy must be related substantially to a legitimate governmental interest. The court held the Board's policy as applied to Mr. Grimm did not substantially relate to protecting student privacy because Mr. Grimm used the boys' restroom for seven weeks without incident, and with the installation of privacy enhancements in the bathrooms, no other privacy concerns remained.

To the claim that failure to amend his school records violated Mr. Grimm's equal protection rights, the court found the Board's decision was not substantially related to its important interest in maintaining accurate records (as claimed by the Board) because Mr. Grimm's legal gender in the state of Virginia is male.

The court also affirmed the district court's holding that the Board's bathroom policy and refusal to amend his school records were violations of Title IX. Because the school was federally funded, the court only needed to determine whether the Board discriminated against Mr. Grimm, and if this discrimination caused him harm, in violation of Title IX.

The court noted, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (Grimm, p 616, citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020)). The court held that Mr. Grimm suffered legally cognizable harm from this discrimination. The court noted that, in addition to the stigma of being forced to use a separate restroom, the physical locations of the alternative restrooms were inconvenient, adding to the harm caused. Thus, the court affirmed the lower court's holding.

The court found the Board's refusal to update Mr. Grimm's school records was also in violation of Title IX, holding that the policy discriminated on the basis of sex and harmed Mr. Grimm because, when he applies to universities, he will be asked for a transcript with a sex marker that is incorrect and does not match his other documentation, which would be worse treatment than that received by other similarly situated students.