In the case of Grimm v. Gloucester Cty. School Bd., 302 F. Supp. 3d 730 (E.D.Va. 2018), a federal trial court allowed a transgender student to bring discrimination claims against the student’s school board based upon the student’s transgender status under Title IX of the Education Amendments of 1972 (“Title IX”) and the Equal Protection Clause of the Fourteenth Amendment. It is important to note that the federal trial court simply ruled that transgender claims exist as a matter of law. The federal trial court did not conclude that the transgender student was discriminated against by the school board.
In regard to the Title IX claim, the federal trial court found that discrimination based upon transgender status is equivalent to discrimination based upon gender-stereotyping since “by definition, transgender persons do not conform to gender stereotypes.” Grimm at 745. In light of the fact that “gender stereotyping” is an actionable sex discrimination claim under Title IX, the federal trial court concluded that “transgender status” is also an actionable sex discrimination claim under Title IX.
In regard to the Equal Protection claim, the federal trial court rejected the school board’s argument that its policy protects the privacy rights of all students – regardless of transgender status – because – in this case – the federal trial court concluded that (1) the transgender student previously used the boy’s restroom for several weeks without incident, (2) no students ever complained of the transgender student’s use of the boy’s restroom, (3) the transgender student’s mere presence in a restroom did not risk any other students’ privacy any more than the presence of overly curious students of the same-sex, and (4) the school board’s alleged privacy concerns would also warrant requiring different restrooms for pre-pubescent and post-pubescent students which the school board had never done.
So, what effect does this federal trial court’s decision have on school boards – assuming it is not subsequently overturned? With regard to potential Title IX claims, school boards should be aware that their policies and practices relating to transgender students may constitute sex discrimination. With regard to potential Equal Protection claims, school boards should be aware that facts actually matter so policies and practices should not be grounded upon presumptions and speculations alone.
UPDATED: As of October 29, 2018, the Grimm case is currently set for bench trial on July 23, 2019. Please check our blog often for updates regarding this rapidly emerging issue impacting school districts across the country.
To read this case, click here.
As we previously blogged about here, here, and here; this case has a turbulent federal court history. Schools should take great care when handling situations involving transgender students and contact legal counsel as the law in this area is rapidly changing. McGown & Markling attorneys are always available to advise you regarding these issues.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.