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LGBTQ+ issues

Gavin Grimm’s Supreme Court victory may help fight against anti-trans laws

The Daily Beast

June 29, 2021

Legal advocates say the principle established in Gavin Grimm’s case—that young trans people should be treated equally—could prove powerful when challenging recent anti-trans bills.

After six years, long after Gavin Grimm’s education at his Virginia high school came to an end, the Supreme Court effectively ruled Monday that he could use the restroom of his choice.

As The Daily Beast reported, in a so-called “denial of cert,” the highest court in the land declined to hear the case involving Grimm and Gloucester County School Board—and in so doing reaffirmed successive rulings made by lower courts.

The U.S. District Court for the Eastern District of Virginia and the U.S. Court of Appeals for the Fourth Circuit both decreed that Grimm’s local school board violated Title IX—which outlaws sex discrimination in educational settings that receive federal aid—and the Equal Protection Clause by preventing Grimm from using the same restrooms as other boys, and making him instead use separate restrooms. The Biden administration recently announced that trans students were protected under Title IX.

“I am glad that my years-long fight to have my school see me for who I am is over,” Grimm said in a statement. “Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

LGBTQ legal advocates say that while the Supreme Court’s move positively impacts trans students in the courts of appeal jurisdictions where Grimm’s case was heard—states within the Fourth, Seventh, and Eleventh Circuits—it could also be a useful new weapon in countering the wave of recent anti-trans legislation, as well as legal challenges to that legislation underway in Arkansas (over trans teens’ access to gender-affirming health care), West Virginia (over their access to playing sports), and Tennessee (over signage businesses must use if they allow trans people to use the restroom of their choice).

“We are excited that on the 52nd anniversary of Stonewall, the Supreme Court let the lower court decision in Gavin Grimm’s case stand,” Alejandra Caraballo, a staff attorney with the Transgender Legal Defense and Education Fund, told The Daily Beast. “The lower court decision held what we all know to be right, that trans young people are protected by Title IX and they merit respect, affirmation, and support. While today’s decision leaves in place the fourth circuit decision, the denial of cert does not settle this issue.

“There remains the risk that another circuit court will come to a different conclusion on a separate matter. This would create a circuit split and potentially force this issue back to the Supreme Court in the future. At this moment in time, when trans young people are under attack like never before by state legislatures, it’s important to remember that three circuit courts of appeal have been unanimous in holding that trans people are protected by Title IX.”

Paul D. Castillo, counsel and students’ rights strategist at Lambda Legal, told The Daily Beast that Grimm’s “resilience and perseverance serve as a stark reminder that LGBTQ people continue to face harm by discriminatory policies and those who target them in general.”

Castillo said the “incredible victory” for Grimm and other transgender students would be studied by courts outside the immediate geographical scope of the ruling. The ruling for Grimm matches others, said Castillo, that cite Title IX in ensuring trans people can access “educational programs, activities, health services, and being able to walk into places of public accommodation and be served like any other person.”

Experts including Castillo were not surprised that the Supreme Court declined to hear Grimm’s case. Typically the court only hears cases in which there have been significant disagreements, and varying rulings, in the lower courts; in Grimm’s case the lower courts consistently ruled in Grimm’s favor.

Josh Block, senior staff attorney with the ACLU’s LGBTQ & HIV Project, told The Daily Beast that Grimm’s case “didn’t resolve any situation other than restrooms, but it makes clear that treating trans student any differently from other students is a form of discrimination, and that under the Constitution this kind of discrimination will be subjected to heightened scrutiny. Another thing it makes clear is that treating transgender students based on their sex assigned at birth isn’t treating them the same as everyone else. It’s treating them differently and unequally. I think that’s a huge precedent to have on the books, guiding how other decisions are to be made.”

That a conservative-dominated Supreme Court didn’t intervene in Grimm’s case shows, said Block, an “increased understanding that the sky isn’t going to fall in if society allows transgender students to treated equally, that this is not an emergency, and that school districts can get along just fine complying with the Fourth Circuit decision in the meantime. Obviously, declining to hear the case is not the same as the Supreme Court accepting it and affirming the decisions of the lower courts, but it is a huge signal that treating transgender students equally isn’t the end of the world.”

However, the current climate—in which there have been multiple bills introduced, and some passed, in Republican-controlled state legislatures banning trans youth’s access to playing sports consistent with their gender identity, alongside access to gender-affirming health care—means that “the fight is far from over,” said Castillo. “There has been a long history of LGBTQ people having to show up at state houses and fight for their rights in the courts in all aspects of their lives. We will continue to be vigilant about schools or other parties seeking to exclude LGBTQ people from full and equal access to schools, health care, and places of public accommodation. State legislatures around the country would be well advised to take note of today’s decision.”

In extending congratulations to Grimm, Gabriel Arkles, senior counsel at the Transgender Legal Defense and Education Fund, also placed the Supreme Court’s announcement in the context of the wave of transphobia in state legislatures and society at large.

“It is clear discrimination to exclude people from any aspect of public life simply because we are transgender,” Arkles said. “By deciding not to hear the case, the Supreme Court has not given in to the anti-trans scare tactics our opponents tried to wield. Transgender people are everywhere, and treating us equitably harms no one. The Court’s choice comes as an especially welcome relief in the middle of what has been a brutal year for trans communities, including an onslaught of anti-trans state laws and at least 29 murders of trans people so far.”

The Supreme Court’s decision, said Block, showed it was willing “to interpret civil rights protections, with their plain text, and not carve out exemptions for LGBTQ people.” Block said that the landmark “Bostock” Supreme Court decision of last year, which held that sex discrimination, as defined under Title VII of the 1964 Civil Rights Act, encompassed sexual orientation and gender identity, was another example of this. While there are justices on the court who want to create accommodations for religious objectors, Block added, as seen in last week’s narrowly defined win for a Catholic childcare agency in Philadelphia—in Grimm’s case religion played no role.

It is conceivable, Block said, that a more conservative court circuit could hear another case like Grimm’s, rule differently, and a split among courts on that circuit may emerge sending the case to the Supreme Court. “But bathroom access doesn’t have the same firepower for right wing groups as it used to. Now they are focused on trans youth’s access to sports and health care. But if they were biding their time, hoping the Supreme Court would take up Grimm’s case, today’s decision smacks them down. If they were hoping the Supreme Court was going to step in and overturn the Grimm rulings, the message is: ‘That is not happening anytime soon, and Grimm as a precedent is here to stay.’”

Castillo said Grimm’s case—his victories in the lower courts, and the Supreme Court’s effective handing of a victory—will be “cited and studied” in the current legal challenges Lambda Legal and the American Civil Liberties Union have mounted in West Virginia and Arkansas over the sports ban and access to health care laws introduced there. While the cases may be different to Grimm’s, the principle of equal treatment for trans school students that his case establishes is meaningful.

The contexts may be different in the sports bans and access to health care bills, but Block said the “analytical framework” of Grimm’s victory could prove powerful going forward—meaning that the courts, including the highest in the land, have set out that is wrong to treat young trans people differently to other young people.

“It’s certainly a good precedent,” said Block, “and we look forward to future cases making their own good precedent.”

The cause for “huge alarm,” Block said, remained the wave of anti-trans bills tabled and passed in the last legislative session. The bans on access to sports and health care may ultimately end up as issues at the Supreme Court, he added, although so far the lower courts have unanimously ruled in favor of equality and equal treatment for young trans people.

“As long as that continues, I don’t think the Supreme Court will get involved,” Block said.