Will the Supreme Court Protect Transgender Bathroom Rights?

By: Lisa Clark

“I’m not looking for a compromise. I’m not looking for separate but equal. I am looking for the same opportunities that my peers enjoy every single day, and that includes using the same restroom as any other student”.[1]

Gavin Grimm, a high school senior from southern Virginia, began his transition from female to male when he was a sophomore.[2] Through the transition process, Gavin began to use public facilities that corresponded to his gender; male.[3] While his school originally gave him permission to use the boys restroom while at school, complaints and threats from parents followed.[4] Gavin’s school board tried to solve its bathroom debacle by providing Mr. Grimm with gender neutral facilities and neglecting to allow him to use the men’s, or the woman’s bathroom.[5]

Considering the school’s solutions inadequate and unjust, Grimm unsuccessfully sued his school board in federal district court.[6] He claimed that Gloucester County school board had violated Title IX of the Education Amendments of 1972 by declining to allow him equal access to bathroom facilities while at school.[7] Title IX of the Education Amendments of 1972 ties federal public school funding to compliance with anti-discrimination laws.[8] Grimm successfully appealed the District Court’s decision.[9]

Shortly after the District Court’s decision was appealed, the Departments of Justice and Education jointly released a Dear Colleague letter.[10] Dear Colleague letters are interpretive rules issued by agencies to guide the public on how rules should be interpreted.[11]  The letter provided state governments and school districts insight into how the Agencies interpret Title IX of the Education Amendments of 1972.[12] The Dear Colleague Letter, unambiguously adopts the Obama-era approach to gender discrimination as a subset of sex discrimination.[13]

In October 2016, the United States Supreme Court agreed to review the Fourth Circuit decision.[14] The Supreme Court granted Gloucester County school district a stay, which prevents Mr. Grimm from using the men’s bathroom while at school.[15] The Supreme Court will focus on two issues: whether courts should defer to unpublished agency letters, and whether school boards must defer to the Department of Education’s interpretation of Title IX.[16]

Because many states have recently enacted legislation to expand or limit transgender bathroom rights, there are many parties who may be impacted by the Court’s holding.[17] Should the case be heard by the current eight-member panel and result in a tie, then the Fourth Circuit decision in favor of Mr. Grimm will remain in effect.[18] Moves by the Justice Department under the Trump Administration may impact how the Supreme Court interprets the case and facts.[19] In a separate, but unrelated case, the Justice Department chose to withdraw a challenge brought by the Obama administration.[20]


[1] See Gender Revolution: A Journey with Katie Couric, National Geographic http://channel.nationalgeographic.com/gender-revolution-a-journey-with-katie-couric/videos/gavin-grimms-story/.

[2] See Joshua Block, Did the Supreme Court Really Just Issue an Emergency order to Stop a 17-Year-Old Transgender Boy From Using the Boys Bathroom at School?, American Civil Liberties Union (October 28, 2016), https://www.aclu.org/blog/speak-freely/gavin-grimm-heading-supreme-court.

[3] See Gender Revolution: A Journey with Katie Couric, National Geographic http://channel.nationalgeographic.com/gender-revolution-a-journey-with-katie-couric/videos/gavin-grimms-story/.

[4] See G.G. v. Gloucester County Sch. Bd., 822 F.3d 709, 714 (4th Cir. 2016).

[5] See id.

[6] See G.G. v. Gloucester County Sch. Bd., 132 F.Supp.3d 736, 740 (E.D. Va. 2015).

[7] See id., at 741. See also 20 U.S.C. § 1681(a) (2012) (preventing discrimination on the basis of sex in educational programs and activities that receive federal financial assistance).

[8] See  20 U.S.C. § 1681(a) (prohibiting sex-based discrimination in educational institutions).

[9] See G.G. v. Gloucester County Sch. Bd., 822 F.3d 709, 714 (4th Cir. 2016).

[10] See “Dear Colleague” Letter from Catherine E. Lhamon, Assistant Sec’y for Civil Rights and Vanita Gupta, Principal Deputy Assistant Attorney Gen. for Civil Rights, U.S. Dep’t. of Justice, Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[11] See Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 88 (1995) (stating that interpretive rules do not carry the force and effect of law).

[12] See “Dear Colleague” Letter from Catherine E. Lhamon, Assistant Sec’y for Civil Rights and Vanita Gupta, Principal Deputy Assistant Attorney Gen. for Civil Rights, U.S. Dep’t. of Justice, Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[13] See “Dear Colleague” Letter from Catherine E. Lhamon, Assistant Sec’y for Civil Rights and Vanita Gupta, Principal Deputy Assistant Attorney Gen. for Civil Rights, U.S. Dep’t. of Justice, Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[14] See Gloucester County Sch. Bd., 822 F.3d at 714 (4th Cir. 2016) cert. granted, 137 S. Ct. 369 (2016).

[15] See Joshua Block, Did the Supreme Court Really Just Issue an Emergency order to Stop a 17-Year-Old Transgender Boy From Using the Boys Bathroom at School?, American Civil Liberties Union (October 28, 2016), https://www.aclu.org/blog/speak-freely/gavin-grimm-heading-supreme-court.

[16] See Gloucester County Sch. Bd., 822 F.3d at 714 (4th Cir. 2016) cert. granted, 137 S. Ct. 369 (2016) (granting writ of certiorari limited to questions two and three of the petition).

[17] See, e.g., Robinson v. Dignity Health, No. 16-CV-3035 YGR, 2016 WL 7102832, at *1 (N.D. CA. Dec. 6, 2016) (granting a Motion to Stay pending the resolution by the United States Supreme Court of Gloucester County School Board v. G.G., No. 16-273).

[18] See Durant v. Essex Co., 74 U.S. 107, 110 (1868) (holding that no affirmative action may be made when the judges of the Supreme Court are equally divided in opinion).

[19] Liam Stack, Trump Drops Defense of Obama Guidelines on Transgender Students, New York Times, Feb. 11, 2017 at A15 (withdrawing a challenge brought by the Obama Administration.)

[20] Id.