RICHMOND, Va. (CN) — The long-running fight over a rural Virginia school’s transgender student bathroom policy returned Tuesday to the Fourth Circuit, where one judge wondered whether the creation of a nongendered bathroom amounts to separate-but-equal discrimination.
Gavin Grimm, a transgender man, launched his legal fight against the Gloucester County School Board after it refused to let him use the boys’ bathroom. Gloucester High School at first aimed to comply with his request to use the restroom aligned with his gender identity, but complaints from parents and one student pushed the school board to adopt a policy that led to the creation of a third, nongendered restroom for Grimm and other students 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 argue the policy violates both Title IX, which prohibits discrimination in federally funded schools, and the 14th Amendment’s equal protection clause.
Grimm filed suit in summer 2015, and after wins and losses through the court system, including a victory at the Fourth Circuit in August 2016, he made it all the way to the U.S. Supreme Court.
President Donald Trump, despite promising to support transgender Americans on the campaign trail, instead bowed to his base on the evangelical right, which has fought against inclusive transgender policies. While Grimm had been relying on a boarder interpretation of Title IX implemented under the Obama administration, the Trump administration’s new directive issued in February 2017 dropped the requirement that public schools honor students’ gender identity.
Based on Trump’s new guidance, the Supreme Court vacated Grimm’s win and sent the case back to the Fourth Circuit.
Grimm graduated from Gloucester High School that year. After voluntarily dismissing the case, he brought an amended complaint in August 2017. A federal judge denied the school board’s motion to dismiss the case and sided with Grimm a year later, finding the transgender bathroom ban discriminated against him. The school board appealed to the Fourth Circuit.
Tuesday’s arguments in the Richmond-based appeals court strayed little from the original theories both sides presented throughout the dispute’s five-year history, and the three judge panel featuring two Democratic appointees and one Republican appointee could bode well for Grimm in the latest round of his legal battle.
David Corrigan, an attorney with the Richmond-based firm Harman Claytor Corrigan & Wellman representing the school board, argued that the third bathroom option created for Grimm — and any other student who might want to use it — was an accommodation of his needs as a transgender person.
He also argued gender is a binary concept and the threshold for changing that gender, including the surgical change of genitals, must be met before a student could cross from one bathroom line to the other.
“The school board always treated Grimm with respect, and accommodated his requests… The only exception was the restroom policy,” Corrigan said during live-streamed oral arguments.
But U.S. Circuit Judge James A. Wynn Jr., a Barack Obama appointee, asked if the creation of a third bathroom amounted to the kind of discrimination he experienced as a young black student growing up in segregated North Carolina.
“You’ve established a class of [transgender] people like Grimm. It’s separate but equal,” the judge said, pointing to the school’s argument that the third bathroom was open to anyone after they admitted even Grimm, let alone any other students, didn’t use it for fear of stigmatization.
“Like one of the black schools. I actually know ‘cause I went to a few,” Wynn said. “So it’s nice to say [students] can go to the other school but nobody ever does that.”
Wynn also emphasized the hurt Grimm claimed to experience by the creation of a third bathroom falls in line with the legal definition of stigmatization.
“Everything we know [is] that it’s stigmatizing to be excluded from facilities that everyone else uses, especially when the school board says your presence would make other people uncomfortable,” the judge said.
But Corrigan found an ally in U.S. Circuit Judge Paul V. Niemeyer, a George H.W. Bush appointee, who appeared to lean more into the binary nature of genders.
“The reason is he doesn’t qualify as a boy, he qualifies mentally, but there is a distinction because of his physical make up,” the judge said, before pointing to sections of Title IX that he said “authorizes discrimination between the sexes in bathrooms, dorms and locker rooms.”
“The statues make an exception for [these facilities] with the idea that men and women — different sexes — the institution can separate them,” Niemeyer added. “There was nothing in the record that Congress, when they enacted it, they were thinking about transgender persons.”
“Isn’t this better for Congress to handle?” the judge asked.
Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Project, pushed back on this theory. He pointed to Supreme Court decisions that have examined how the law interprets gender while also clarifying where gender’s use can run afoul of the law.
“They cast a policy that was just for him… these separate facilities were not only different, they were unequal. They were stigmatizing and humiliating,” Block argued. “Everywhere Gavin goes he interacts with the world as a boy, but when he walks through the doors of Gloucester High School he’s treated differently than other boys.”
U.S. Circuit Judge Henry F. Floyd, another Obama appointee, rounded out the three-judge panel. The hearing was held via live YouTube feed because of the Covid-19 pandemic.
The judges did not offer a timeline for a ruling. Considering the dispute’s impact on public school bathroom policies nationwide, another appeal to the Supreme Court is expected by the losing party.