Stalled

Gavin Grimm Is Transgender. His Legal Fight to Go to the Bathroom Is Endless

A federal court has denied Gloucester County School Board’s motion to dismiss Gavin Grimm’s lawsuit, but the case of this trans teen wanting to use the boys' bathroom is not over.

The Washington Post via Getty

Gavin Grimm has been fighting to use the boys' bathroom for four years.

He has been fighting so long that he graduated from the Virginia high school that originally denied him that right in 2014, insisting that he use a separate single-stall restroom instead, before his legal challenge could even be resolved.

It’s always been surprising to me how the school board has fought tooth and nail every step of the way to stop Gavin from using the bathroom

And even now—even after a federal court this week denied the Gloucester County School Board’s motion to dismiss Grimm’s lawsuit, writing in its ruling that the transgender man has “sufficiently pled a Title IX claim of sex discrimination”—the fight may still go on.

Ordered by the court to schedule a settlement conference, the school board could choose to prolong the legal battle instead. The American Civil Liberties Union, which represents Grimm, is prepared for that possibility.

“It’s always been surprising to me how the school board has fought tooth and nail every step of the way to stop Gavin from using the bathroom,” Joshua Block, senior staff attorney for the American Civil Liberties Union LGBT & HIV Project. “I would hope that the school board wouldn’t continue to drag its heels but if it’s an appeal, then so be it.”

Grimm’s case has already been a tortuously long one that was thrown for a loop in the early days of the Trump administration. Grimm, as the ACLU notes in its case summary, first lost a bid for a preliminary injunction at the district court level, then appealed to the Fourth Circuit, where he won.

But the school board appealed to the Supreme Court, which put the Fourth Circuit ruling on hold when then 17-year-old Grimm was still in school, while the Justices decided whether or not to grant full review, as The Daily Beast reported in August 2016.

Two months later, the Court did grant full review, and for a time it seemed like G.G. v. Gloucester County School Board would become a landmark case—the first to put key questions about legal protections for transgender Americans before the Supreme Court.

Then Trump happened.

In February 2017, the Departments of Education and Justice rescinded prior Obama-era guidance on restroom use for transgender students. The following month, as The Daily Beast reported, the Supreme Court cited the rescinding of that guidance in its decision to send Grimm’s case back to the Fourth Circuit.

“It just resets the case to where it was two years ago,” Block told The Daily Beast shortly thereafter.

Grimm, for his part, was determined to keep fighting, telling The Daily Beast last May, “I’m prepared to stick it out for as long as I need to.”

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In August 2017, after then 18-year-old Grimm had already graduated, the Fourth Circuit sent the case back to the district level, as the Washington Post reported, to determine “whether this case has become moot,” as the judges wrote.

I feel an incredible sense of relief. After fighting this policy since I was 15 years old, I finally have a court decision saying that what the Gloucester County School Board did to me was wrong and it was against the law

So the ruling issued at the district level this Tuesday—which said that the school board’s “argument that the policy did not discriminate against any one class of students is resoundingly unpersuasive”—has been a long time coming.

“I feel an incredible sense of relief,” Grimm said in a statement. “After fighting this policy since I was 15 years old, I finally have a court decision saying that what the Gloucester County School Board did to me was wrong and it was against the law.”

As for why Grimm kept up with the legal challenge after graduation, he said, “I was determined not to give up because I didn’t want any other student to have to suffer the same experience that I had to go through.”

At this point, the new ruling in his favor will accomplish more for transgender youth who are still in school than it will for Grimm specifically.

“It will do a lot of good for other students who are put in the same situation,” Block told The Daily Beast, adding that at this point he believes “any objective review of the court cases shows that Title IX protects trans students.”

Indeed, there is a long history of case law suggesting that discrimination based on transgender status is a violation of civil rights law.  

As Tuesday’s ruling notes, four separate circuit courts have now determined that anti-transgender discrimination is “discrimination because of sex under federal civil rights statutes and the Equal Protection Clause.” Still more district courts have come to the same conclusion.

And when it comes to Title IX, which bans discrimination on the basis of sex in public education, the Seventh Circuit ruled in favor of a transgender boy named Ash Whitaker in May 2017.

The Seventh Circuit became, as the Transgender Law Center noted, the “first federal appeals court to find conclusively that a transgender student has the right to be treated in accordance with the student’s gender identity at school under both Title IX and the Constitution.” Grimm’s new victory only adds to that legal precedent.

But as successful as transgender people like Grimm have been in the court system, the Trump administration’s opposition to transgender student rights could delay victories.

As HuffPost first reported in January, the Department of Education’s Office for Civil Rights now seems to be dismissing complaints of restroom discrimination brought by transgender students. And with the Obama-era guidance rescinded, the Department of Justice is no longer fighting for transgender rights as vigorously as it was beginning to do under the last administration.

“I think this administration is not only uninterested in helping transgender students but determined to do everything they can to undermine their rights,” Block told The Daily Beast, noting that Trump has been appointing an array of anti-LGBT judicial picks.

Effectively, that means that no matter how many circuit courts rule in favor of transgender students like Grimm, it is unlikely that the Trump administration will not intervene on their behalf unless compelled to do so by the highest authority.

Earlier this week, for example, Education Secretary Betsy DeVos was presented by congressional Democrats with court precedent on the issue of transgender student rights, as CNN reported, and she said the rulings were “mixed.”

I think that this administration isn’t going to do anything unless the Supreme Court requires them to

“I am not going to make up law at the Department of Education,” DeVos said.

That position starkly contrasts with the Obama administration, which argued that preexisting civil rights law already protected Grimm in a legal brief filed on behalf of the teenager in October 2015, as Buzzfeed News reported.

“I think that this administration isn’t going to do anything unless the Supreme Court requires them to,” Block told The Daily Beast. “But in the meantime, thankfully, the courts are there, doing their jobs and protecting people’s rights. And whether or not the administration wants to ignore the law, the courts are going to be there to enforce it.”