“Sex” and the Transgender Student

The long and winding road of Grimm v. Gloucester County Board of Education may yet lead back the Supreme Court. For the moment this case on the rights of one transgender student has stopped in Richmond, Virginia, at the U.S. Court of Appeals for the Fourth Circuit.

The defendant Board has just appealed the trial court’s decision this summer in favor of Grimm. That ruling found that the word “sex” in Title IX covered not just the sex a student is born with, but the one he or she identifies with as well. This meant that the Board had violated the law’s prohibition on “discrimination on the basis of sex.”

Gavin Grimm was born female but in high school identified as male. His dispute with his school district came down to bathrooms. Grimm wanted to use the boys’. His school let him, but classmates’ parents protested to the board of ed.

The school then built three single-stall bathrooms. The Board believed this satisfied its obligation under the law (as then interpreted) to treat every student fairly. But Grimm insisted that he had a right to use the boys’ bathroom and that keeping him out discriminated against him as a transgender student. He took his claim to federal court.

The trial court ruled against him, but the appellate court overturned the decision. During the Obama administration the United States Department’s Office of Civil Rights had advised schools and colleges that “sex” included the gender with which a student identified.

The Board appealed this ruling to the Supreme Court. Before it could hear the case, the Trump administration changed the Department of Education’s position on “sex.” The Supreme Court sent the case back to the trial court. This time it ruled in Grimm’s favor.

It seems likely that after all this, whatever the Fourth Circuit rules, one or other of the parties will ask the Supreme Court for a final decision.