The 14th Amendment’s Equal Protection Clause and Transgender Students
Gavin Grimm’s Plight
By Alana DeGarmo, Director of Legal Writing and Professor of Law
Gavin Grimm’s story is at the forefront of transgender bathroom issues. Gavin is a transgender high school student in Gloucester, Virginia, who sought permission to use the boys’ bathroom in August 2014, just before his sophomore year.
He had been diagnosed with gender dysphoria, and on the advice of his psychologist, began living as a boy in every respect, including using male restrooms in all public venues. Brief for Respondent at 5, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273). According to the American Psychological Association, gender dysphoria is characterized by, among other things, a “marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics.” APA, What Is Gender Dysphoria? (visited Mar. 15, 2017).
The school principal gave Gavin permission to use the boys’ bathroom and Gavin did that for seven weeks. Community members subsequently spoke out against Gavin, and after a movement by various groups that demanded school board intervention, the Gloucester County School Board barred Gavin from using the boys’ restroom and instead gave him access to the restroom in the nurse’s office and single-stall restrooms for males and females. Brief for Respondent at 5, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273).
The American Civil Liberties Union (“ACLU”) and the Virginia ACLU sued the school board on behalf of Gavin in June 2015 for violating Title IX of the Education Amendments Act of 1972 (“Title IX”) and the Equal Protection Clause of the United States Constitution. Brief for Respondent at 10, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273). Title IX prohibits federally funded education programs from sex discrimination. U.S. Dept. of Education Office for Civil Rights, Title IX and Sex Discrimination (visited Mar. 16, 2017). The 14th Amendment forbids states from "deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV.
Gavin also sought an injunction allowing him to use the boys’ restroom pending trial. Brief for Respondent at 10, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273). The district court for the Eastern District of Virginia denied Gavin’s request for an injunction and dismissed his Title IX claim, but did not rule on the school board’s motion to dismiss the Equal Protection claim. G.G. ex rel Grimm v. Gloucester County School Board, 822 F. 3d 709, 717 (4th Cir. 2016).
Gavin appealed the injunction denial and the dismissal of the Title IX claim to the United States Court of Appeals for the Fourth Circuit, and the school board sought affirmation of the lower court’s rulings and a dismissal of the Equal Protection claim on which the district court had not yet ruled. The United States filed an amicus brief in support of the Title IX claim. G.G. ex rel Grimm v. Gloucester County School Board, 822 F. 3d 709, 719 (2016).
The Department of Education’s Office of Civil Rights had issued an opinion letter in January 2015 interpreting Title IX to require that schools provide transgender students access to restrooms that are “consistent with their gender identity.” Brief for Respondent at 10, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273). The Grimm case gave the United States an opportunity to defend its position on transgender rights, and in its amicus brief it urged the Fourth Circuit to give a federal department’s interpretation of its own regulation “controlling weight” pursuant to Auer v. Robbins, 519 U.S. 452 (1997). Brief for Respondent at 16, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273).
The Fourth Circuit overturned the district court’s decision in April 2016—a victory for Gavin Grimm. The court determined that the school board’s restroom policy put Gavin “at risk for long-term psychological harm.” Brief for Respondent at 11, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273). In a concurring opinion, Senior Judge Davis urged the district court to take “prompt action” to avoid any further psychological harm. Brief for Respondent at 11, Gloucester School Board v. G.G. ex rel. Grimm, 2017 WL 1567467 (No. 16-273).
The Department of Education and the Department of Justice issued another opinion letter in May 2016, reiterating their position on providing transgender students access to restrooms consistent with their gender identity. The opinion letter tied a failure to comply with the guidelines to schools’ risk of losing federal funding. Dept. of Education, Examples of Policies and Emerging Practices for Supporting Transgender Students (May 2016).
The Gloucester County School Board then petitioned for a Writ of Certiorari to the Supreme Court of the United States. A hearing was scheduled for March 28, 2017, but on March 6th the Court announced that it was vacating the appellate court decision and remanding the case to the appellate court for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” Gloucester County School Board v. G.G. ex rel Grimm, No. 16-273, 2017 WL 855755 (U.S. Mar. 6, 2017).
Politics' Effect on the Case
This is a classic example of how politics can change everything. Between the time that the Supreme Court hearing was set and the hearing date, Donald Trump was elected and inaugurated. His administration promptly issued a letter to schools advising them that state and local school districts could interpret anti-discrimination laws. “This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said. “Schools, communities, and families can find—and in many cases have found—solutions that protect all students.” Trump overturns Obama's school protections for transgender students, The Journal (Feb. 27, 2017).
Will the Equal Protection Clause Protect Transgender Students?
In the meantime, the Equal Protection claim in the Grimm case has still not been decided, but a recent case shows promise for Gavin. Justice Kennedy stated in his opinion for the majority in a same-sex marriage case, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Professor Lawrence Tribe argued in a Harvard Law Review article that the Obergefell case’s “chief jurisprudential achievement” combined the Due Process and Equal Protection doctrines to create a doctrine of “equal dignity,” and that the Obergefell case “directly redresses” the “subordination of LGBT individuals.” Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16 (2015).
Gavin’s case is not the only transgender “bathroom issue” case. Litigation is ongoing in Illinois Students and Parents for Privacy v. United States Department of Education, 2016 WL 3269001, and in May of 2015 the Justice Department and North Carolina filed lawsuits against each other over transgender issues. Joshua Berlinger, North Carolina's bathroom law: Six points from both sides of the issue (May 10, 2016).
Another federal court recently issued a decision similar to the Fourth Circuit’s decision in Gavin’s case: Three transgender students sued a school district in Pennsylvania for violations nearly identical to Gavin’s claims. Once again, students were given permission to use the restroom that matched their gender identity with support of the school and without incident. After parent groups protested, the school board passed a resolution that barred the students from using restrooms that matched their gender identity. The court ruled in favor of the students based on the Equal Protection Clause. Evancho v. Pine-Richland Sch. Dist., No. CV 2:16-01537, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017).
Whether the Equal Protection Clause will ultimately protect Gavin Grimm or other similarly situated students will not be determined quickly. Most experts believe that the Supreme Court will eventually hear this issue. If the Court interprets Title IX broadly and/or agrees that “sex” and “gender identity” are on equal footing from a constitutional standpoint, transgender students who face the “bathroom issue” in the future may be protected. In the meantime, Gavin Grimm will likely graduate before his case is resolved. In a moving article that Gavin wrote, published in the New York Times on March 7, 2017, he stated that he will be “fine” and that he is “stronger and prouder than ever.” Gavin Grimm, The Fight for Transgender Rights Is Bigger Than Me (Mar. 7, 2017).
Gavin is now a standard-bearer for transgender students across the country. A statement he made in 2015, though, captures the human side of this legal issue: “I didn’t set out to make waves. I set out to use the bathroom.” Gary Robertson, Trans Student Fights For His Right To Use The Boys Bathroom (Jan. 27, 2016).
Alana DeGarmo serves as Professor of Law and Director of Legal Writing for Concord Law School at Purdue University Global. The views expressed in this article are solely those of the author and do not represent the view of Concord Law School, Purdue University Global including its parent companies, subsidiaries and affiliates.
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