Constitution Daily

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A high-profile legal victory on transgender rights

August 12, 2019 by Lyle Denniston


The nation’s best-known transgender student, Gavin Grimm, has won his discrimination case against his old high school – for the second time. The new victory came on Friday, four years after he first filed his lawsuit, three years after his first court victory, more than two years after the Supreme Court opted not to decide the case, and two years after his high school graduation.

Gavin’s prolonged legal saga made him the most visible personal symbol of a new civil rights revolution, an attempt to win equal treatment for transgender individuals under federal civil rights laws and under the Constitution.

The bathroom restriction policy in a Virginia high school that denied Gavin the use of the boys’ intimate facilities became a nationwide symbol of the effort to counter that revolution. “Bathroom bills” showed up increasingly on state legislatures’ calendars.

On Friday, a federal trial judge in Newport News, VA – U.S. District Judge Arenda L. Wright Allen – ruled that the Gloucester County School Board violated Gavin’s rights under Title IX, a 1972 federal civil rights law, and under the Fourteenth Amendment’s guarantee of legal equality.

The ruling was based on the school board policy that barred Gavin from using the boys’ restroom because he had been born a girl. As he grew up, Gavin became transgender, identifying as a boy.
As lawyers for Gavin had asked, Judge Wright Allen awarded him only $1 in damages but also ordered the school board to correct his academic records so that any transcript he or others seek will show that he was a male student during his high school years.

Gavin, who graduated from the school in Gloucester Courthouse, Va., in June 2017, is now a student in a junior college, Berkeley City College – just down the street from the Berkeley campus of the University of California.

The civil rights law at issue in his case – Title IX – outlaws discrimination “on the basis of sex” in any educational program that receives federal funds. The transgender rights movement has relied on that law, as well as on a 1964 law, Title VII, that bans discrimination “because of sex” in the workplace. The movement also has made claims based on the Fourteenth Amendment’s guarantee of “equal protection” under any state or local law, since that clause years ago was extended to guarantee sex equality.

Thus, Gavin’s victory – one of a lengthening list of victories in lower federal courts – depends upon the meaning of “sex” in the laws governing employment and education.

And, in a pattern that is now familiar to Gavin, his victory may not last – at least his victory under Title IX. In April, the Supreme Court agreed to consider an appeal by a Michigan funeral-home owner arguing that Title IX’s reference to sex does not mean transgender identity, but applies only to sex as determined physiologically at birth – that is, traditional male and female sexes. That case involves a transgender woman who was fired from her funeral-home job for violating a sex-specific dress code, based on sex designation at birth.

The Justices will hold a hearing on that case on October 8, the second day of the next term. Also being heard that day are two cases testing whether sex, under the workplace bias law, Title VII, applies to discrimination against gays and lesbians (sexual orientation).

In agreeing to hear the Title IX case on a transgender bias claim, the Court specified that it will consider whether that 1972 law extends to discrimination based on the status of being transgender or based on an individual’s failure to conform to a sex stereotype. The case does not involve the constitutional question under the Fourteenth Amendment, but the outcome the Court reaches on the scope of the civil rights law could influence how the Justices react to the constitutional claim in a future case.

In the ruling in the Gavin Grimm case on Friday, Judge Wright Allen ruled – as a federal appeals court had ruled in his favor three years ago – that Title IX does apply to transgender discrimination, based on an individual’s status as transgender. The judge said that the school board policy was based on Gavin’s “gender nonconformity” – that is, his identity as a boy after being born a girl.

The judge wrote: “Under the policy, all students except for transgender students may use restrooms corresponding with their gender identity. Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.”

The judge went on to rule in Gavin’s favor under the Fourteenth Amendment’s protection of legal equality, concluding that that guarantee applies to all “persons,” a category that includes individuals in their gender identity. The opinion rejected the school board’s argument that its policy was necessary to protect the privacy in school restrooms of students of traditional male and female sexes.

The Gloucester County School Board has the option of appealing the case to a federal appeals court and, ultimately, to the Supreme Court. After Gavin’s 2016 victory in a federal appeals court, the school board did appeal to the Supreme Court, which agreed to hear the case. But Gavin’s victory in the lower court at that time had been based largely on an Obama Administration policy in favor of applying Title IX to transgender cases. So, when the Trump administration took office in 2017 and abandoned that policy, the Supreme Court decided not to rule, but returned the case to the lower courts to reconsider.

That returned the case to the federal trial court in Newport News, resulting in a two-year process by Judge Wright Allen, and then her ruling on Friday. In issuing her ruling, the judge noted that “the arduous journey that this litigation has followed since its inception four years ago.” That, she added, helps in understanding “that passion and conviction have infused the arguments and appeals along the way.”

Those arguments will persist, at least until the Supreme Court rules.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.


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