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Update on transgender sex discrimination

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Climate Risk and Resilience

December 17, 2020

Schools should be careful in implementing policies related to LGBTQ students in light of Grimm and Bostock.

In the very first issue of Public News and Views in 2017, we shared the status of several lawsuits filed by LGBTQ students and employees based on Titles VII and IX of the Civil Rights Act and the U.S. Constitution’s 14th Amendment. One of those cases has had a long and circuitous route through the federal courts, but because of a court of appeals decision handed down in late August 2020, it appears that its resolution may be near.

In the case of Grimm v. Gloucester School Board,1 the 4th Circuit Court of Appeals relied partly on the recent U. S. Supreme Court decision in Bostock v. Clayton County (140 S. Ct. 1731 (2020)2 to hold that the school board’s policies segregating transgender students from their peers are unconstitutional and violate federal laws prohibiting sex discrimination in education. The ruling effectively reverses the school’s policies regarding use of bathrooms by transgender students and prohibiting use of a student’s gender identity on his school transcript. According to the 4th Circuit, while Grimm’s case was rooted in Title IX, the reasoning used by the Supreme Court in Bostock interpreting Title VII (workplace discrimination “on the basis of sex”) would be the same.

The recent ruling follows a lower court decision in Grimm’s favor last year, but both followed a U.S. Supreme Court decision first, to hear the case on its original appeal in 2017, followed by a later decision to send the case back to the 4th Circuit Court of Appeals for review in light of the current administration’s rescission of President Obama’s administrative guidance to schools on the subject of transgender student accommodations. The August 2020 decision by the 4th Circuit, followed by a denial of the school district’s request for a full court rehearing of the case in late September, means that the matter may finally be on its way to a U.S. Supreme Court decision if the Court accepts a likely request to hear it.

With the Bostock precedent so recent, many observers believe the Court will be hard pressed to distinguish Grimm from that case even though different Titles of the Civil Rights Act are involved, as both use similar language in prohibiting sex discrimination. As the Grimm appeals court reasoned, citing Bostock, “{T}he Board could not exclude Grimm from the boys bathrooms without referencing his ‘biological gender’ under the policy, which it has defined as the sex marker on his birth certificate. Even if the Board’s primary motivation in implementing or applying the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board’s actions. Therefore, the Board’s policy excluded Grimm from the boys restrooms ‘on the basis of sex.’”

We will be following this decision if the Supreme Court agrees to hear it on appeal from the 4th Circuit Court and report on the outcome. Meanwhile, schools should be careful in implementing polices on issues related to LGBTQ students in light of Grimm and Bostock to avoid potential liability under Title IX or the U.S. Constitution.

Disclaimer

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Footnote

1 https://www.ca4.uscourts.gov/opinions/191952.P.pdf

2 140 S. Ct. 1731 (2020);
https://supreme.justia.com/cases/federal/us/590/17-1618/

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