Executive Summary: The protracted case of Gavin Grimm is set to be heard once again by the United States Court of Appeals for the Fourth Circuit. Grimm, a transgender male, was denied use of the boys’ bathroom while a high school student in Gloucester County, Virginia. The 2015 decision by the United States District Court for the Eastern District of Virginia dismissing Grimm’s lawsuit was appealed to the U.S. Supreme Court before being remanded back to the District Court in early 2017. On May 22, 2018, District Court Judge Arenda Wright Allen denied Gloucester County’s renewed motion to dismiss Grimm’s case. Joining a long list of other courts, Judge Allen held that discrimination based on gender identity falls within the Price Waterhouse v. Hopkins gender stereotyping theory and is, therefore, a per se violation of Title IX of the Education Amendments Act of 1972, as well as a violation of the Equal Protection Clause of the Fourteenth Amendment. On June 5, 2018, Judge Allen granted Gloucester County’s motion seeking immediate review by the Fourth Circuit. Grimm responded via Facebook, “[h]ere we go again.” The Fourth Circuit is the federal appeals court with jurisdiction over the federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.

Background:

Grimm’s sex assigned at birth was female. He began his gender transition in 2012 when he was a 15-year-old sophomore at Gloucester County High School. He used the boys’ bathroom without incident during his transition, until December, 2014, when the Gloucester County School Board adopted a policy requiring students to use the bathroom consistent with their biological sex. Now banned from using the boys’ bathroom, Grimm brought suit in the Eastern District of Virginia, claiming that the School Board policy violated Title IX and the Equal Protection Clause. On September 17, 2015, the court dismissed Grimm’s Title IX claim, holding that gender identity does not fall within Title IX’s definition of “sex.” The court did not address the Equal Protection claim.

Grimm appealed to the Fourth Circuit. Relying on Obama-era guidance issued by the U.S. Department of Education’s Office for Civil Rights (OCR) that public schools “generally must treat transgender students consistent with their gender identity,” the Fourth Circuit reversed on April 19, 2016. A little less than a month later, on May 13, 2016, the Obama Department of Education and Department of Justice jointly issued additional guidance consistent with that of the OCR. On October 28, 2016, the U.S. Supreme Court granted certiorari in Grimm’s case. However, on February 22, 2017, a month before oral arguments were scheduled, the newly sworn-in Trump Administration reversed the Obama Administration’s guidance. The U.S. Supreme Court then remanded the case back to the Fourth Circuit for further proceedings to determine what effect, if any, this new guidance would have on Grimm’s claims. The Fourth Circuit, in turn, remanded to the District Court.

Judge Allen’s Decision:

On remand, Grimm amended his complaint. Gloucester County again moved to dismiss on the grounds gender identity is not protected by Title IX or the Equal Protection Clause. In her May 22, 2018 decision, Judge Allen disagreed. Relying on Title VII of the Civil Rights Act of 1964 – which prohibits discrimination “because of sex” in employment – for guidance, Judge Allen looked to the “sex stereotyping” theory first recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins. In Price Waterhouse, a female employee was denied a promotion after being told by her supervisors that she was not feminine enough. The Price Waterhouse Court held that gender stereotyping is a form of sex discrimination prohibited by Title VII.

Judge Allen noted that while the Fourth Circuit had not yet addressed whether gender identity discrimination constitutes gender stereotyping, the District of Maryland and the First, Ninth and Eleventh Circuits have addressed and answered that question in the affirmative. Accordingly, Judge Allen held that “discrimination on the basis of transgender status constitutes gender stereotyping because by definition, transgender persons do not conform to gender stereotypes” and that “pursuant to the logic of Price Waterhouse, transgender discrimination is per se actionable sex discrimination under Title VII” “and, by extension,” it is also “per se actionable…under Title IX.” Judge Allen also held that the Equal Protection Clause provides similar protections, rejecting the idea that student privacy concerns are a legitimate governmental interest justifying the policy.

Appeal to the Fourth Circuit:

The LGBTQ community, including Grimm, and its supporters are rejoicing over this ruling. The Gloucester County School Board, however, is not, and has announced its intention to continue defending its policy. Grimm and his attorneys have also made public statements that this is an issue that ultimately needs to be addressed by the U.S. Supreme Court. Thus, with consent from Grimm, on June 1, 2018, the Gloucester County School Board attorneys sought permission from Judge Allen for immediate appeal to the Fourth Circuit, a right which is not automatic in intermediate orders such as this one. On June 5, 2016, Judge Allen granted permission for the interlocutory appeal because (1) the issue is one of law; (2) there is a reasonable difference of opinion as to how the law should be interpreted; and (3) resolving this legal issue will likely lead to resolving Grimm’s case. All further proceedings have been stayed pending the outcome of this case in the Fourth Circuit and perhaps the U.S. Supreme Court.

Employers’ Bottom Line:

Judge Allen joins an increasing number of federal judges, at both the trial court and appellate levels, to conclude that discrimination based on gender identity – and in some cases sexual orientation – is illegal gender stereotyping prohibited by Title VII and Title IX. As protections for transgender individuals increase, employers and schools are encouraged to consider putting in place policies to assist employees and students undergoing gender transition, and to provide training for human resources, managers, supervisors and teachers in how to effectively administer these policies and accurately and effectively address any questions from colleagues and/or students. Employers and schools should consider implementing policies that allow transgender employees and students to use the bathroom of their choice. It should be noted that requiring a transgender employee to use a single-stall bathroom can constitute discrimination according to many state and federal agencies. Instead, single-use bathrooms can be made available for those employees and students who may feel uncomfortable sharing a bathroom with a transgendered individual or for transgender employees or students to use should they prefer using a single-stall restroom.