Virginia school board owes $1.3M in fees after losing transgender bathroom fight

RICHMOND, Va. (CN) — A federal judge on Thursday ordered a rural Virginia school board to pay nearly $1.3 million in legal fees following a successful challenge to its controversial bathroom policy brought by a transgender student.

“You can’t put a number on the amount of pain this type of disruption puts in someone's life, let alone young transgender people,” former Gloucester County student Gavin Grimm, the plaintiff in the landmark case, said in a phone interview after the $1.28 million fee order was handed down. “But having a number that is so massive, to those who would otherwise chose discrimination, is definitely a more tangible deterrent."

Grimm, now college-aged, first launched his legal fight against the Gloucester County School Board in 2015 after his high school denied his request to use the restrooms and locker rooms aligned with his gender identity. While school officials tried to comply with his request at first, complaints from parents and another student pushed the school board to adopt a policy that led to the creation of a third, nongendered restroom for Grimm to use while banning him from using the male restroom.

But Grimm saw the nongendered bathroom as a stigmatizing alternative, one that singled him out and forced him outside of traditional gender roles. He and his lawyers with the American Civil Liberties Union argued the policy violated both Title IX, which prohibits discrimination in federally funded schools, and the 14th Amendment’s equal protection clause.

Grimm faced wins and losses as the case progressed through the court system, including a victory at the Fourth Circuit in August 2016 before the case made it up to the U.S. Supreme Court in 2017. The high court punted the case after former President Donald Trump changed Title IX rules for transgenders students and it returned to the Fourth Circuit, where a three-judge panel pointed to the state’s history of racial segregation in its decision in favor of Grimm. The panel scoffed at the school board's argument that any student can use the nongendered bathroom.

“That is like saying that racially segregated bathrooms treated everyone equally, because everyone was prohibited from using the bathroom of a different race,” wrote U.S. Circuit Judge Henry Floyd, a Barack Obama appointee. “No one would suppose that also providing a ‘race neutral’ bathroom option would have solved the deeply stigmatizing and discriminatory nature of racial segregation; so too here.”

The Fourth Circuit also summarily shot down the argument that even if the policy discriminates on the basis of sex, it cannot violate the equal protection clause because Grimm was not “similarly situated to cisgender boys.” People who identify with the sex they were assigned at birth are considered cisgender.

The school board continued its fight, but its second appeal to the Supreme Court was denied without comment this past summer, with the justices letting the Fourth Circuit ruling stand and giving protections to transgenders students nationwide. 

“We are glad that this long litigation is finally over and that Gavin has been fully vindicated by the courts, but it should not have taken over six years of expensive litigation to get to this point,” said Josh Block, the senior staff attorney with the ACLU's LGBTQ & HIV Project who argued Grimm’s case before the Fourth Circuit, in a statement following the judge’s order.

While Grimm and the ACLU are celebrating their win, they’re also offering a warning to school boards around the country considering discriminatory bathroom policies.

“Taxpayers should not be forced to foot the bill for school boards who act in disregard for the law,” said Eden Heilman, legal director at the ACLU of Virginia.

Heilman pointed to Virginia’s recent enactment of model policies for public schools to follow regarding treatment of transgender students. Grimm and his legal team hope school boards will realize failing to protect transgender students can be both harmful and costly. 

“You’re going to harm vulnerable children who deserve a quality education just like everyone else,” said Grimm, who lives in Virginia and has plans to return to college. “It’s also going to be a very expensive mistake.”

In an emailed statement, the Gloucester County School Board said an insurance provider covered the cost of the legal fees. It offered no additional comment on the matter.

Follow Brad Kutner on Twitter

Follow @@BradKutner

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit