After more than four years of litigation, there is finally a ruling on the merits in Gavin Grimm’s transgender rights lawsuit against the Gloucester County (Virginia) School Board. On August 9, U.S. District Judge Arenda L. Wright Allen granted Grimm’s motion for summary judgment, finding that the school district violated his rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s Equal Protection Clause by refusing to let the transgender boy use the boys’ restroom facilities while he was attending Gloucester High School and by refusing to update his official school transcript to conform to the “male” designation on his amended birth certificate. Grimm v. Gloucester County School Board, 2019 WL 3774118 (E.D. Va., Aug. 9, 2019).
In addition to awarding Grimm a symbolic damage recovery of $1.00, the court issued a permanent injunction requiring the School Board to update Grimm’s official records and provide “legitimate copies of such records” to Grimm by August 19. Judge Wright Allen also ordered that the Board “shall pay Mr. Grimm’s reasonable costs and attorneys’ fees” in an amount to be determined. In light of the length and complexity of this lawsuit, the fee award is likely to be substantial.
Grimm began his freshman year at Gloucester High School in 2013 listed as a girl on enrollment papers, consistent with his original birth certificate. During spring of his freshman year, Grimm told his parents that he was transgender and he began therapy with Dr. Lisa Griffin, a psychologist experienced in transgender issues, who diagnosed gender dysphoria and put the diagnosis in a letter that Grimm later presented to school officials. Also in 2014, Grimm legally changed his first name to Gavin and began using the mens’ restrooms “in public venues.” Prior to the beginning of his sophomore year at Gloucester High, he and his mother met with a school guidance counselor, provided a copy of Dr. Griffin’s letter, and requested that Grimm be treated as a boy at school.
They agreed that Grimm would use the restroom in the nurse’s office, but he found it stigmatizing and inconvenient, making him late for classes. After a few weeks of this, he met with the guidance counselor and sought permission to use the boys’ restrooms. The request went up to the school’s principal, Nate Collins, who conferred with the Superintendent of Schools, Walter Clemons, “who offered to support Principal Collins’ final decision,” according to testimony in the court record. Collins then gave Grimm the go-ahead to use the boys’ bathrooms, which he did for seven weeks without any incident. Grimm had been given permission to complete his phys ed requirement through an on-line course and never used the boys’ locker room at school.
Word that a transgender boy was using the boys’ restrooms got out in the community and stirred up opposition from “adult members of the community,” who contacted school officials to demand that Grimm be barred from using the boys’ rooms. The School Board devoted two meetings to the issue, finally voting in December 2014 to adopt a formal policy that the use of restroom and locker room facilities “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”
The Board announced that it would construct some single-sex unisex restrooms in the high school, but until then Grimm would have to use the restroom in the nurse’s office. There eventually were such unisex restrooms, but they were not conveniently located for use between classes and Grimm ended up not using them, finding a requirement to use them as stigmatizing. Instead, he tried to avoid urinating at school and developed urinary tract infections, as well as suffering psychological trauma.
Meanwhile, at the end of his sophomore year in June 2015, the Virginia Department of Motor Vehicles issued Grimm a state ID card identifying him as male. When he need brief hospitalization to deal with thoughts of suicide during his junior year, he was admitted to the boys’ ward at Virginia Commonwealth University’s hospital. In June 2016, he had top surgery, and on September 9, 2016, the Gloucester County Circuit Court ordered the Health Department to issue him a new birth certificate listing him as male, referring to his surgery as “gender reassignment surgery” even though it did not involve genital alteration. In October 2016, Grimm presented a photocopy of his new birth certificate to the school, but they refused to update his records to reflect male status, and his transcripts still identify him as female.
Grimm, represented by the American Civil Liberties Union (ACLU), filed his lawsuit on June 11, 2015, in the U.S. District Court for the Eastern District of Virginia in Norfolk. The case was assigned to Senior District Judge Robert G. Doumar, who quickly granted the school district’s motion to dismiss the Title IX claim and reserved judgment on Grimm’s constitutional claim while Grimm appealed the dismissal. The 4th Circuit Court of Appeals reversed the dismissal, relying on an interpretation of Title IX endorsed by the U.S. Departments of Education and Justice during the Obama Administration, and sent the case back to Judge Doumar, who issued a preliminary injunction on June 23, 2016, requiring the School Board to let Grimm use the boys’ restrooms. Conveniently for the school board, this order came at the end of the school year, so they had several months of summer break to try to forestall having to let Grimm use the boys’ restroom when school resumed. Although the 4th Circuit quickly turned down the Board’s motion to stay the injunction, an emergency application to the Supreme Court was granted on August 3, 2016, pending the filing of a petition for review by the School Board and guaranteeing that Grimm was unlikely to be able to use the boys’ restrooms during his senior year if review was granted by the Supreme Court.
Ultimately, the Board did filed its appeal, which was granted with argument set to take place in March 2017. This timing would virtually guarantee that Grimm would not be able to use the boys’ restrooms at the high school before his graduation, since a case argued in March would not likely result in an opinion being issued until June. Elections and fate intervened as well, as the new Trump Administration moved to “withdraw” the Obama Administration’s interpretation of Title IX, on which the 4th Circuit had relied. The Solicitor General advised the Supreme Court of this withdrawal and the Court took the case off the hearing calendar and sent it back to the 4th Circuit, which in turn sent it back to the district court. Judge Doumar having retired, the case was reassigned to Judge Wright Allen.
Since Grimm had graduated by then, the School Board argued that his request for injunctive relief was moot, as he would no longer be attending Gloucester High School. The ACLU countered that the question of the restroom policy’s lawfulness was not moot, that Grimm as an alumnus would be barred from using the boys’ restroom when he returned to the school for public events, that Grimm was still entitled to a ruling on his claim for damages. The district court refused to dismiss the case, and discovery went forward. Although the lawsuit had already been to the 4th Circuit twice and to the Supreme Court, there still had not been any ultimate ruling on the merits of the case at that point.
On May 22, 2018, Judge Wright Allen issued a ruling denying the School Board’s motion to dismiss the case as moot, and she ruled that Grimm had a viable claim of sex discrimination under Title IX. She also ruled at that time that the constitutional equal protection claim would be decided using “intermediate scrutiny,” which puts to the government the burden to show that its policy substantially advances an important government interest. On February 19, 2019, the court allowed Grimm to file a new amended complaint adding the issue of the School Board’s refusal to issue a corrected transcript.
On July 23, the court heard arguments on new motions for summary judgment filed by both parties. These motions were decided by Judge Wright Allen’s August 9 ruling, which also rejected most of the School Board’s objections to various items of evidence offered by Grimm – mainly letters and medical records documenting his gender dysphoria diagnosis and subsequent treatment – which were incorrectly described by the School Board as “expert testimony” that was not admissible through discovery. The court agreed to the school board’s argument that documents relating to failed settlement discussions should be excluded from consideration.
As to the merits of Grimm’s Title IX claim, the court found that Grimm had been excluded from participation in an education program on the basis of sex when the School Board adopted a policy that would bar him from using the boys’ restrooms at the high school, that the policy harmed Grimm both physically and psychologically, and that because the Gloucester schools receive federal financial assistance, they are subject to Title IX. Consequently, summary judgment should be granted to Grimm on his Title IX claim.
As to the Equal Protection claim, the court relied on a Supreme Court ruling concerning the exclusion of girls from Virginia Military Institute, in which Justice Ruth Bader Ginsburg wrote that in a sex-discrimination case involving “intermediate scrutiny,” the defendant bears the burden of “demonstrating that its proffered justification for its use of the classification is ‘exceedingly persuasive.’” In this case, the Board’s justification was “an interest in protecting the privacy rights of students, specifically privacy interests that students have in protecting their unclothed bodies.”
Judge Wright Allen found that the Board had made “no showing that the challenged policy is ‘substantially related’ to protection of student privacy.” She referred to the lack of any student complaints during the seven-week period that Grimm used the boys’ restrooms during his sophomore year and, she wrote, “The Board’s privacy argument also ignores the practical realities of how transgender individuals use a restroom.” Common sense prevailed, as the judge quoted another trans bathroom court opinion: “When he goes into a restroom, the transgender student enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves.”
The Board’s witness at the summary judgment hearing, conceding that there was no privacy concern for other students when a transgender student walks into a stall and shuts the door, testified that “privacy concerns are implicated when students use the urinal, use the toilet, or open their pants to tuck in their shirts. When asked why the expanded stalls and urinal dividers could not fully address those situations,” wrote the judge, “Mr. Andersen responded that he ‘was sure’ the policy also protected privacy interests in other ways, but that he ‘couldn’t think of any other off the top of his head.’ This court is compelled to conclude that the Board’s privacy argument ‘is based upon sheer conjecture and abstraction,’” this time referring to the 7th Circuit ruling in Ash Whitaker’s trans bathroom case.
Judge Wright Allen also pointed out that although trans high school students have not had genital surgery, if they are taking hormones they are developing secondary sex characteristics of the gender with which they identify. “If exposure to nudity were a real concern,” she wrote, “forcing such a transgender girl to use male restrooms could likely expose boys to viewing physical characteristics of the opposite sex. From this perspective, the Board’s privacy concerns fail to support the policy it implemented.”
The court concluded that the School Board’s policy must be found unconstitutional, pointing out, in addition, that the Board’s refusal to change the gender indication on Grimm’s school records “implicates no privacy concerns.” The Board had contended that there were some doubts about the validity of the new birth certificate, because the photocopy they were provided was marked “Void.” This was explained away by testimony from the government official responsible for issuing the documents. It seems that all but the original would be marked “Void,” and that Grimm has a valid, authentic birth certificate identifying him as male, which the School Board should have honored.
Judge Wright Allen acknowledged the difficult task the School Board faced in deciding how to proceed during the fall of 2014. She wrote, “The Board undertook the unenviable responsibility of trying to honor expressions of concern advanced by its constituency as it navigated the challenges represented by issues that barely could have been imagined or anticipated a generation ago. This Court acknowledges the many expressions of concern arising from genuine love for our children and the fierce instinct to protect and raise our children safely in a society that is growing ever more complex. There can be no doubt that all involved in this case have the best interests of the students at heart.” However, this was no excuse for imposing a discriminatory and unconstitutional policy on Grimm.
“However well-intentioned some external challenges may have been,” Wright Allen continued, “and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand. These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives of our children who rely upon us to protect them compassionately and in ways that more perfectly respect the dignity of every person.”
Grimm had long since disclaimed any demand for financial compensation for the injuries he suffered in violation of his statutory and constitutional rights, so the court awarded only nominal (symbolic) damages of $1.00, but it directed that the School Board issue a new, corrected transcript in ten days, and the parties will now haggle about the size of the award of attorney’s fees and costs, which should be substantial.
Judge Arenda L. Wright Allen, nominated to the court by President Barack Obama, was the first female African-American judge to serve in the U.S. District Court for the Eastern District of Virginia after she was unanimously confirmed by the Senate (96-0) in May 2011. She had previously been the top Federal Public Defender in the Eastern District of Virginia, and was a former Assistant U.S. Attorney and a military judge. Prior to this ruling, her most noteworthy decision, issued in February 2014, declared Virginia’s ban on same-sex marriage unconstitutional.