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EDVA: Title IX prohibits transgender discrimination

Gavin Grimm, who attended a Virginia public high school and was prohibited from using the boys’ bathroom because he was identified as female at birth, sufficiently alleged discrimination claims against the school under both Title IX and the Equal Protection Clause.

Background

Plaintiff Gavin Grimm attended Gloucester High School from 2013 through 2017. Although hospital staff identified Grimm as female at birth, Grimm has known from a young age that he has a male gender identity — that is, he has a deeply felt, inherent sense of being a boy, a man, or male. Because his gender identity differs from the sex assigned to him at birth, he is transgender.

After the onset of puberty, Grimm began suffering from gender dysphoria, a condition describing persistent and clinically significant distress caused by the incongruence between their gender identity and the sex assigned to them at birth. There’s a medical and scientific consensus that treatment for gender dysphoria includes allowing transgender individuals to live in accordance with their gender identity, including using restrooms and other sex-separated facilities that match their gender identity. Treatment may also include hormone therapy and surgery to bring about physical sex characteristics typical of their gender identity.

By the end of his freshman year at Gloucester, Grimm began the process of transitioning to live in accordance with his male identity. By the time he began 10th grade, Grimm had legally changed his first name to Gavin and had begun using male pronouns. He wore clothing and a hairstyle in a manner consistent with other males and used men’s restrooms in public venues without incident. He also obtained a letter from his medical providers confirming that he was to be treated as a male in all respects — including restroom use. Grimm began using the boys’ restroom at Gloucester during his sophomore year, with the principal’s support.

However, after parent complaints, the School Board voted on a new policy segregating bathroom use by “biological” gender. The Board installed single-user restrooms, but they were not located near Grimm’s classes, and no student other than Grimm used them. Because Grimm felt physically isolated by the new policies, he refrained from using any restroom at school. He developed a urinary tract infection and had difficulty concentrating in class because of physical discomfort. When he attended sports events, no restroom was available for him.

Grimm continued treatment for gender dysphoria, including hormone therapy that altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair. In June 2015, Virginia issued him a state identification card designating his gender as male. He underwent chest-reconstruction surgery before beginning his senior year. Later that year, a circuit court issued an order changing his sex under Virginia law and directed the Department of Health to issue him a birth certificate listing his sex as male. Throughout the process of these changes, the School Board prohibited administrators from permitting Grimm to use the boys’ restrooms.

Grimm brought this action against the School Board in July 2015. After lengthy appellate litigation, the case was remanded for this court to consider Grimm’s claims under Title IX and the Equal Protection Clause. The School Board has moved to dismiss.

Reconsideration of prior dismissal

This court is not bound by the previous dismissal of the Title IX claim. The 4th Circuit reversed that dismissal, but the U.S. Supreme Court vacated the 4th Circuit’s decision based on withdrawal of the underlying administrative guidance and remanded for reconsideration of the Title IX claim under these new circumstances.

The applicable law has significantly changed since this court considered the Title IX claim in 2015. The 6th and 7th Circuits have since held that excluding boys and girls who are transgender from the restrooms that align with their gender identity may subject them to sex discrimination under Title IX, the Equal Protection Clause, or both. A number of district courts have reached the same conclusion. These precedents, containing thorough analyses of analogous questions, are persuasive.

In addition, factual developments warrant reconsideration of the original decision. Since the previous dismissal, Grimm has received chest reconstruction surgery, obtained a court order legally changing his sex under Virginia law, and received a new birth certificate listing his sex as male. The previous decision didn’t consider whether the School Board’s policy violated Title IX in light of these developments. Thus, revisiting the question of whether Grimm has stated a plausible Title IX claim is warranted.

Application to transgender status

Grimm can bring a claim of sex discrimination under Title IX. The Board contends that the term “sex” “includes the physiological distinction between men and women,” but this interpretation fails to acknowledge that some individuals possess both male and female physical sex characteristics. Thus, attempting to draw lines based on physiological and anatomical characteristics proves unmanageable: How would the Board’s policy apply to students who have had genital surgery, individuals whose genitals were injured in an accident, or those with intersex traits who have genital characteristics that are neither typically male nor female? How would the Board have implemented its policy as to Grimm after his medical procedures, which produced some secondary male physical sex characteristics?

The policy assigned restrooms based on “biological gender,” not physiological characteristics. This term has not been accepted by the medical community because “sex” is distinct from “gender.” Under the Board’s “gender” formulation, which restroom would a transgender individual who had undergone sex reassignment surgery use? What about an intersex individual? What about an individual bom with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? Given the Policy’s disregard for these distinctions, its use of the term “biological gender” functioned as a proxy for physiological characteristics that a student may or may not have had. It allowed the Board to isolate, distinguish, and subject to differential treatment any student who deviated from the physiological characteristics the Board believed that a male or female student should have.

As to the application of 34 C.F.R. § 106.31, courts may look to interpretations of Title VII of the Civil Rights Act for guidance in evaluating Title IX claims. Five other circuits have recognized that, based on the logic of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a gender stereotyping allegation generally is actionable sex discrimination under Title VII. Although the 4th Circuit has yet to do the same, this court joins the District of Maryland in concluding that “discrimination on the basis of transgender status constitutes gender stereotyping because by definition, transgender persons do not conform to gender stereotypes.” Transgender discrimination is per se actionable sex discrimination under Title VII. Accordingly, Grimm can assert a Title IX claim of discrimination “on the basis of sex” — that is, based on his transgender status.

Title IX allegations

Grimm has sufficiently pled a Title IX claim. First, he has alleged that he was improperly discriminated against on the basis of his transgender status. A policy that requires transgender students to use bathrooms not in conformity with their gender identity subjects a transgender student to different rules, sanctions, and treatment than non-transgender students. Furthermore, a gender-neutral alternative is insufficient to relieve a school board of liability because the policy itself violates Title IX. Restroom alternatives that impose hardships like unreasonable distances and increased stigma are inadequate.

Second, Grimm has sufficiently alleged that the discrimination harmed him. The location of the bathrooms, coupled with the stigmatization and physical and mental anguish inflicted on him, caused harm. A policy requiring an individual to use a bathroom that doesn’t conform with his or her gender identity punishes that individual for gender non-conformance, which in turn violates Title IX.

For all these reasons, Grimm has sufficiently pled a Title IX claim of sex discrimination under a gender stereotyping theory.

Equal Protection claim

As an initial matter, the School Board’s policy warrants intermediate scrutiny. First, transgender individuals constitute at least a quasi-suspect class, because they have historically been subject to discrimination, transgender status has no bearing on a transgender individual’s ability to contribute to society, transgender status is immutable and often comes with distinguishing characteristics, and they occupy a minority status. The policy classified Grimm on the basis of his quasi-suspect transgender status.

Second, the policy relies on sex stereotypes. Accordingly, Grimm’s claims amount to an allegation of a sex-based classification and, therefore, an allegation of sex-based discrimination in violation of the Equal Protection Clause. Therefore, review of the policy is subject to intermediate scrutiny.

Applying intermediate scrutiny, the policy was not substantially related to achieving an important governmental objective. Although a privacy justification may be a legitimate and important interest, the policy here is not genuine because it is based upon sheer conjecture and abstraction. Grimm allegedly used the boys’ bathrooms for weeks without incident before adults in the community — not students — complained. Also, a transgender student’s presence in a restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.” And if school districts were genuinely concerned with protecting the privacy of students with different-looking anatomies, then separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children,” which the school district had not provided.

There were many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Grimm from using the boys’ restrooms. For example, the Board had taken steps “to give all students the option for even greater privacy” by installing partitions between urinals and privacy strips for stall doors. Additionally, students who wanted greater privacy for any reason could have used one of the new single-stall restrooms. Preventing Grimm from using the boys’ restrooms did nothing to protect the privacy rights of other students, but certainly singled out and stigmatized Grimm.

The Board’s argument that the policy treated all boys and girls the same is unavailing. The policy singled out Grimm by treating transgender students who fail to conform to the sex-based stereotypes differently, whereas a boy making the personal choice to change clothes in or use a single-stall restroom would not have been singled out by the school policy. The Board’s argument that the policy did not discriminate against any one class of students is resoundingly unpersuasive.

Defendant’s motion to dismiss denied.

Grimm v. Gloucester Cnty. Sch. Bd., Case No. 4:15cv54, May 22, 2018. EDVA at Newport News (Allen). VLW No. 018-3-210, 31 pp.