Examining Grimm v. Gloucester County School Board

Debra Daniel

Grimm v. Gloucester County School Board

972 F.3d 586 (4th Cir. 2020)

Executive Summary

In August of 2020, the United States Fourth Circuit Court of Appeals issued a 2-1 decision in the case of Grimm v. Gloucester County School Board. The Grimm decision answers the questions of whether a school’s refusal to allow a transgender student to use the school bathroom that corresponds with their gender identity violates the U.S. Constitution’s Equal Protection Clause, and whether it discriminates based on sex in violation of Title IX. The Fourth Circuit held that the school’s actions violated both the Equal Protection Clause and Title IX. The Fourth Circuit further held that the school’s refusal to amend Grimm’s school records to accurately reflect his gender, even after it was amended on both his driver’s license and birth certificate, also violated the Equal Protection Clause and Title IX.

Background and Facts

The student plaintiff/appellee, Gavin Grimm, is a transgender male who was not allowed to use the boys restrooms at Gloucester County High School. Grimm’s assigned sex at birth, also referred to as his “biological sex,” is female, but his gender identity is male. At the beginning of high school, Grimm began to express his male identity, including changing his first name to Gavin. By the time Grimm entered his sophomore year, he was living fully as a boy, including using the men’s restrooms in public without incident.

Prior to the start of his sophomore year, Grimm and his mother met with a school guidance counselor to discuss his transition. At that time, the school’s bathrooms were all multi-stalled, single-sex (i.e., boys or girls) bathrooms and were located throughout the school. The only other options were faculty restrooms and a restroom in the nurse’s office. Grimm initially agreed to use the restroom in the nurse’s office.[1] However, once school started, he began to feel the stigma of having to use a separate restroom and “began to feel anxiety and shame surrounding [his] travel to the nurse’s office” to use the restroom. He also found that having to use the nurse’s restroom caused him to be late to class because of its location in the school.

After a few weeks of using the nurse’s restroom, Grimm requested permission to use the boys restrooms, which was approved by the principal. For seven weeks, Grimm used the boys restrooms without incident. However, adults soon began to complain including adults from neighboring communities and other states.[2] In response to these complaints, the following policy was proposed for adoption by the school board at its meeting on November 11, 2014:

Whereas the [Gloucester County Public Schools (GCPS)] recognizes that some students question their gender identities, and

Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and

Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the GCPS 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.

Twenty-four community members spoke at the meeting.[3] Two types of concerns predominated that meeting: 1) that the “majority” needed to be protected from this “minority” intrusion; and 2) that allowing transgender students to use the restroom that corresponded to their gender identity would allow for predatory behavior such as male students pretending to be transgender to gain access to the girls restroom.

The board voted 4-3 to delay the vote on the policy. At the next meeting in December, the speakers’ comments were, as the Court stated, “uglier.” Grimm was called a “freak” and compared to a dog. Speakers referred to Grimm’s gender identity as a “choice” and stated that they would vote out the board members if they allowed Grimm to use the boys’ restrooms.

At both meetings, Grimm and his parents spoke against the proposed policy. Grimm spoke about how “alienating” and “humiliating” it was to have to use the restroom in the nurse’s office and he shared that he uses the men’s public restrooms without “any sort of confrontation of any kind.”

The board voted in favor of the policy 6-1. In addition to the policy, the board approved a series of updates to the school’s restrooms to improve general privacy for all students. These updates included partitions between urinals in boys restrooms, privacy strips to the doors of stalls in all of the restrooms, and the construction of three single-stall unisex restrooms that were available to all students. All three unisex restrooms were located far from Grimm’s classes. In fact, none of the unisex restrooms were constructed in Hall D, where most of Grimm’s classes were held.

The Court found that a common occurrence for transgender students who are not permitted to use the restrooms matching their gender identity is “restroom avoidance,” where transgender students fast, dehydrate, or find other ways not to use the restroom. “Restroom avoidance” frequently results in medical problems. For Grimm, this caused him to suffer recurring urinary tract infections. In his junior year, Grimm was hospitalized for suicidal ideation due to being in an environment where he felt “unsafe, anxious, and disrespected.”

Grimm sought other schooling options and spent the rest of his junior year in a program in a separate building, but that program was cancelled. He had to return to his high school his senior year and spent as little time as possible at school until he graduated. During this same time, Grimm continued with his gender transition including getting chest reconstruction surgery; updating his driver’s license to reflect that he is a male; and obtaining a court order declaring that he is “now functioning fully as a male” and directing that his birth certificate be amended accordingly.

After receiving his new birth certificate, Grimm and his mother provided it to his high school and asked that his school records be updated to reflect his correct gender. Through legal counsel, Grimm was informed by letter that the school declined to update his records, but did not provide a reason.

Fourth Circuit Court of Appeals’ Decision in Grimm[4]

Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This provision has been interpreted by the U.S. Supreme Court to mean that “all persons similarly situated should be treated alike.” The Court first needed to decide what level of scrutiny applied to Grimm’s equal protection claim.[5] Based on Supreme Court precedent, the Court concluded that heightened scrutiny applied since the school’s bathroom policy uses sex-based classifications and because transgender people are considered at least a quasi-suspect class. In order to satisfy heightened scrutiny, the board’s bathroom policy must serve “an important governmental objective” and be “substantially related to achieving that objective.”

In applying heightened scrutiny, the Court considered the board’s stated “important governmental objective” of protecting students’ privacy and analyzed whether the policy was “substantially related to achieving that objective.” The Court noted, however, that the board’s policy was not substantially related to protecting students’ privacy since there was no evidence in the record that supported the conclusion that students had less privacy if transgender students were allowed to use the restroom that corresponded to their gender identity. The Court concluded that the board’s privacy concerns were based on “sheer conjecture and abstraction.”  The Court further noted that the board ignored evidence that there were no incidents during the seven-week period that Grimm used the boys restroom. It also ignored the growing number of school districts across the country that have implemented policies allowing transgender students to use restrooms that correspond to their gender identities without any negative consequences.

With respect to Grimm’s equal protection claim involving the school’s refusal to update his school records, the Court also found in favor of Grimm. The Court stated that the school’s refusal was not substantially related to its important interest in maintaining accurate records since Grimm’s legal gender in the State of Virginia “is male, not female.”

Title IX

In order to find in favor of Grimm on the Title IX claim, the Court noted that it must find “(1) that he was excluded from participation in an education program ‘on the basis of sex’; (2) that the educational institution was receiving federal financial assistance at the time; and (3) that improper discrimination caused him harm.” The Court found that “[t]here is no question that the [b]oard received federal funding or that restrooms are part of the education program.” The Court then framed the issue before it as “whether the [b]oard acted ‘on the basis of sex,’ and if so, whether that was unlawful discrimination that harmed Grimm.

In finding that the board acted “on the basis of sex,” the Court cited the case of Bostock v. Clayton County, in which the Supreme Court held that “discrimination against a person for being transgender is discrimination ‘on the basis of sex.’” In Bostock, the Supreme Court noted that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court also found that Grimm was harmed. The Court noted that Grimm described under oath that he felt stigmatized and isolated having to use separate restroom facilities; that he developed painful urinary tract infections because he avoided using the restroom; and that he had resulting suicidal thoughts, among other things.[6] The Court further noted that the alternative restrooms were inconvenient which also caused Grimm harm. Moreover, the Court quoted Martin Luther King, Jr., for the principle that “[s]egregation not only makes for physical inconveniences, but it does something spiritually to an individual.”

With respect to whether the policy unlawfully discriminated against Grimm, the Court stated that “[i]n the Title IX context, discrimination ‘mean[s] treating an individual worse than others who are similarly situated.’” The Court then concluded that “Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender.”

The Court dismissed the board’s argument that Title IX expressly allows for “separate toilet, locker room, shower facilities on the basis of sex” as long as they are “comparable” to each other. The Court pointed out that Grimm was not challenging “sex-separated restrooms.” Instead, Grimm was challenging the board’s “discriminatory exclusion of himself from the sex-separated restroom matching his gender identity.”

The Court’s analysis of Grimm’s claim that the board violated Title IX by refusing to update his records was short and to the point. The Court found that the board did violate Title IX since the decision “harmed Grimm because when he applies to four-year universities, he will be asked for a transcript with a sex marker that is incorrect and does not match his other documentation. And this discrimination is unlawful because it treats him worse than other similarly situated students, whose records reflect their correct sex.”

Concurring Opinion

Judge Wynn filed a concurring opinion to emphasize that the board’s classification based on “biological gender,” which it defined as “the sex marker on a student’s birth certificate,” is arbitrary and inconsistent. Judge Wynn noted that “by focusing on an individual’s birth certificate, the [b]oard ensures the policy lacks a basic consistency” and “fails to treat even transgender students alike.” (Emphasis in original.) He noted that the policy targets only transgender students “whose birth certificates do not match their outward physical characteristics while ignoring those transgender students whose birth certificates are consistent with their outward physiology.” This is because transgender students who enroll in the school system after obtaining a birth certificate identifying them as the gender with which they identify would be allowed to use the restroom corresponding to their gender identity. It is only the transgender students that enroll prior to obtaining an amended birth certificate who are subject to the policy.

Moreover, Judge Wynn pointed out that the board’s policy “produces the very privacy harms it purportedly seeks to avoid. Despite appearing wholly male except for his genitals, Grimm could have used the girls restroom under the policy. Female students would thus have found themselves in a private situation in front of someone with the physiology of the opposite biological sex—the exact harm to male students posited by the [b]oard . . . .”

Judge Wynn further highlighted the arbitrariness of the classification by noting that “if the [b]oard’s concern were truly that individuals might be exposed to those with differing physiology, it would presumably have policies in place to address differences between pre-pubescent and post-pubescent students, as well as intersex individuals who possess some mix of male and female physical sex characteristics and who comprise a greater fraction of the population than transgender individuals.”

Judge Wynn also emphasized that the board’s policy “perpetuates a harmful and false stereotype about transgender individuals; namely, the ‘transgender predator’ myth, which claims that students (usually male) will pretend to be transgender in order to gain access to the bathrooms of the opposite sex—thus jeopardizing student safety.” This myth “echoes similar arguments used to justify segregation along racial lines.”

He concludes with a quote from an Eighth Circuit case that “[t]he Constitution of the United States recognizes that every individual . . . is considered equal before the law. As long as this principle is viable, full equality of educational opportunity must prevail over theoretical, sociological and genetical arguments which attempt to persuade to the contrary.”

Dissenting Opinion

Judge Niemeyer wrote the dissenting opinion, noting that “Title IX and its regulations explicitly authorize the policy followed by the [school]. While the law prohibits discrimination on the basis of sex in the provision of educational benefits, it allows schools to provide ‘separate living facilities for the different sexes’ . . . including ‘toilet, locker room, and shower facilities.’” He concludes that the majority opinion orders that the school “allow both transgender males and biological males to use the same restrooms, thus abolishing any separation of restrooms on the basis of biological sex.”

In concluding that “biological sex” refers to “the traditional biological indicators that distinguish a male from a female, not the person’s internal sense of being male or female,” Judge Neimeyer notes that Title IX was enacted in 1972 when “virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females.” (Emphasis in original.)

Judge Niemeyer concludes that “the physical differences between males and females and the resulting need for privacy is what the exceptions in Title IX are all about.” He states that Grimm’s request to allow him to use the boys restroom is “facially untenable,” since it would compromise the separation as explicitly authorized by Title IX.”

With respect to Grimm’s equal protection claim, Judge Niemeyer noted that the Equal Protection Clause requires that “all persons similarly situated should be treated alike.” He concludes that “Grimm cannot claim that he was discriminated against when he was denied access to the male restrooms because he was not, in fact, similarly situated to the biologically male students who used those restrooms.” Moreover, “there is no claim or evidence in the record that Grimm was treated differently from any other transgender student.”

Impact of Grimm on Maryland School Systems

While the board in Grimm petitioned the U.S. Supreme Court for certiorari, it was denied. As such, Grimm is controlling law throughout the State of Maryland, which means that all school systems must follow the precedent of the majority opinion when adopting policies.

The Maryland Association of Boards of Education (MABE) provides the materials and information contained in this newsletter and on this web site for its members and non-member internet users for informational purposes only. Using or accessing this newsletter or website does not create an attorney client relationship between MABE and the accessing user or browser. This newsletter and website are not a substitute for legal advice. Please consult with your legal counsel for specific advice and information.

[1] Restrooms were the only issue related to single-sex facilities that Grimm needed to be addressed. Grimm was given permission to complete his physical education courses online so he did not need to use the school’s locker rooms.

[2] Only one student complained, and that complaint was made prior to certain privacy improvements being made to the boys restrooms.

[3] Grimm and his family were not informed by the school or the board that this policy would be on the agenda for that board meeting, but Grimm’s mother heard about it from a friend. Grimm and his parents attended the meeting.

[4] The majority opinion was written by Judge Floyd.

[5] Under Supreme Court jurisprudence, an equal protection claim must be analyzed under one of three levels of scrutiny depending on the type of classification being challenged. If the classification involves a suspect classification (e.g., race, religion) or burdens a fundamental right (e.g., marriage, procreation) then the claim must satisfy strict scrutiny. If the classification involves a quasi-suspect class (e.g., gender, sex), the claim must satisfy intermediate (or heightened) scrutiny. All other classifications must satisfy a rational basis review.

[6] The Court also noted that the board did not provide any evidence that Grimm was not harmed but only “quibbled with the amount of harm Grimm felt.”

Back to News & Blog