The Bathroom Case that Launched 1000 Foolish Pieces of Legislation.

A federal court in Virginia ruled on Grimm v. Gloucester County School Board late last month, bringing us the latest installment in the saga of the bathroom case.  This round goes to the student, who successfully defended the school district’s motion to dismiss.

If you recall the case, the Gloucester County school board, facing significant pressure from its community, adopted a policy stating

[i]t shall be the practice of the [district] to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

This policy came about after a period of several weeks in which a student born female but suffering from gender dysphoria and transitioning to become male sought and was granted permission to use boys’ bathrooms from his campus principal (not locker rooms – other arrangements were made for P.E.)  Community members found out and raised heck.

The student, Gavin Grimm, sued the Gloucester County Public Schools in 2015.  His case was initially dismissed at the district court level, that dismissal was appealed, OCR issued some guidance we all freaked out about, there was a presidential election we all freaked out about, the case went all the way up to the Supreme Court, got remanded back down, Grimm replead and so here we are back in federal district court defending basically the same motion to dismiss all over again, but now with the benefit of a lot of history, a few additional facts, and some new caselaw.

The School Board’s argument from the beginning has been that Mr. Grimm’s case should be dismissed because his pleadings don’t even satisfy the essential elements of his claims under Title IX or 14th Amendment Equal Protection.  As to the Title IX claims, the District argued that Title IX applies to claims based on sex discrimination, not gender identity discrimination – so essentially no violation of Title IX has even been alleged.  Regarding Mr. Grimm’s Equal Protection claim, the District asserted that there is presumptively no constitutional violation because transgender individuals are not members of a “suspect class,” which would require any governmental action affecting them on the basis of that class to withstand heightened legal scrutiny.

As noted above, Mr. Grimm persuaded the Court as to both claims.  For its part, the District Court premised its analysis upon similar cases but especially on the Supreme Court’s analysis in a 1989 case, Price Waterhouse v. Hopkins. This is a Title VII employment discrimination case in which a female accountant was advised by her Price Waterhouse partners that she stood a better chance of becoming a partner herself if she looked and acted more like they thought a woman ought to – by wearing makeup, doing her hair, and walking and talking more femininely, for example.  Ms. Hopkins prevailed at the Supreme Court and it was, and is a big deal because she didn’t argue that she was discriminated against because she was a woman, she argued she was discriminated against because she didn’t conform to prevailing gender-based stereotypes.  Applying the same logic to Mr. Grimm’s Title IX and Equal Protection claims, the Court concluded that the School Board’s policy treated Mr. Grimm differently based on the incongruity of his gender with his biological sex, was therefore inherently sex-based, and thus he had sufficiently plead a claim for relief under Title IX and for heightened constitutional scrutiny (which the Court held the board’s policy couldn’t withstand), and should not be dismissed.

The Court’s order concludes by directing the parties to schedule a settlement conference, so there is a possibility this will be the end of the line.  The political interests are pretty well-funded on both sides, though, so we’ll have to watch and see.

The District Court’s order in Grimm is available online, but you’ll need to search for it by name and include May 2018.  If you’d like to check out the Price Waterhouse case, it is also worth a read and is easily searchable online.


Tomorrow:  It’s Friday So None of you are at Work Anyway, Right?  Let’s Talk about That!