You never walk away from the table on a heater. Just ask Gavin Grimm. He filed a lawsuit 6 years ago when his school board passed a policy prohibiting him from using the bathroom consistent with his gender identity. His case has yo-yo’d through the federal court system since. Grimm won (again) yesterday in a major way, this time in a decision issued by the Fourth Circuit Court of Appeals. The court agreed that the Gloucester County School Board violated Grimm’s rights under Title IX and the Equal Protection Clause by denying him access to the boys’ bathroom and failing to amend his educational records.
If this feels like deja vu, that's because we’ve been following Grimm’s case for almost six years now. In fact, one of our very first KSBlog posts from 2015 discusses the early loss Grimm was handed, before he began his winning streak (discussed in this post from 2016) and almost got his day in the Supreme Court (discussed in this post from 2017). After years of litigation, the Fourth Circuit cut right to the chase:
“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes.”
You can expect to hear from students, parents, and advocacy groups that the Fourth Circuit’s decision in Grimm (one of several dozen in which the transgender student has won) once again makes clear that schools are obligated to permit students to use sex-segregated facilities consistent with their gender identity. While that position may very well be the law of the land sometime soon, the Eighth Circuit (covering NE and SD) hasn’t decided this issue definitively...yet. We believe you should continue to handle requests for accommodations from transgender individuals on a case-by-case basis under your standard sex discrimination policies. (Keep in mind, though, that the grievance procedures required by the new Title IX regulations likely would not apply to a student’s request for such accommodations, because those procedures only apply to “formal complaints” of “sexual harassment” as defined by the regs.)
To Be Continued?
If this sounds familiar for other reasons, you’re probably recalling the recent Supreme Court decision in Bostock, where 3 employees (2 gay, 1 transgender) sued their employers for discrimination under Title VII. The Supreme Court determined that employers cannot discriminate against any employee on the basis of gender identity or sexual orientation. The day that case was decided, any lawyer following transgender rights litigation predicted that courts and advocacy groups would cite that decision when arguing Title IX cases involving students and schools. The Fourth Circuit in Grimm’s case did just that. The key question now is whether the Supreme Court will take this opportunity to provide the same clarity under Title IX as it did under Title VII, finally giving public schools across the country the clarity they’ve been seeking for years.
If we’re really lucky, that decision would also provide clarity in the area of transgender students’ participation in athletics. After an OCR decision prohibited transgender female athletes from participating in girls’ sports, a U.S. District Court in Idaho promptly reached the exact opposite conclusion, striking down Idaho’s law that prohibited transgender females from participating in girls’ sports in Hecox v. Little.
In the meantime, schools in Nebraska and South Dakota should handle these situations on a case-by-case basis and avoid changes to your policies related to transgender students. If you have any questions about the rights of transgender students, other recent developments under Title IX, or any other issue, don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, or Tyler.