Why a preliminary ruling in a trans student’s lawsuit is such a big deal
It’s an important legal victory, but the federal appeals panel ruling last week in favor of a transgender teen has not yet knocked down the hostility or hurdles blocking transgender people to access public restrooms. And even though LGBT legal activists express a great deal of optimism that the case will eventually make gains for transgender people, opponents have already filed an appeal to the full federal appeals court.
The transgender court victory comes as national attention –even international attention— has reached an important juncture. North Carolina and Mississippi have passed laws to specifically bar transgender people from using public restrooms that correspond to their gender identity and presentation. That has triggered a flood of public and corporate protest, become an issue in the 2016 presidential campaign, and even prompted a question for President Obama and British Prime Minister David Cameron at a joint press conference in London last Friday.
The following is a quick primer on why the appeals panel decision has garnered so much attention and why it may reach far beyond one transgender student in Virginia:
What are the basics? A three-judge panel of the 4th Circuit U.S. Court of Appeals voted 2 to 1 on April 19 that Title IX of the Education Amendments Act of 1972 –which prohibits discrimination based on sex by federally funded educational institutions— also prohibits discrimination based on gender identity. The majority’s ruling in Grimm v. Gloucester came on preliminary motion in a lawsuit filed by a transgender student, Gavin Grimm. The preliminary motion requested that he be able to use his public high school’s boys’ restrooms until his overall lawsuit can be resolved. An 87-year-old Reagan-appointed federal district court judge had denied the preliminary injunction, declaring Grimm to be a female and ruling that “sex” in Title IX does not include gender identity or sexual orientation. The majority reversed that decision, noting that the U.S. Department of Education had issued an opinion letter last year, saying Title IX requires “a school generally must treat transgender students consistent with their gender identity.” The panel sent the case back to the district court with instructions to reconsider the preliminary injunction based on the panel majority’s decision. The Gloucester County School Board immediately appealed the panel’s decision to the full 4th Circuit.
Why is this a big deal? This lawsuit is still in the preliminary stages, and the decision addresses only sex discrimination prohibited by Title IX in federally funded educational facilities. But the April 19 ruling was the first time a federal appeals court anywhere in the nation has ruled that discrimination based on “sex” included discrimination based on “gender identity.” Next, the full 4th Circuit –which covers the states of Virginia, North Carolina, South Carolina, Maryland, and West Virginia – will have an opportunity to weigh in or let the panel decision stand. But LGBT activists note that most of the rest of the 4th Circuit judges are fairly progressive and are likely to uphold the panel decision. Also, North Carolina Governor Pat McCrory –who supported the law in that state to ban transgender people from using public restrooms consistent with their gender identity— said he would “respect” the 4th Circuit panel decision as it applies to federally funded educational facilities. An editorial in the News & Observer newspaper in Raleigh said the ruling should prompt lawmakers there to repeal the anti-gay law.
How big could this get? This could go to the U.S. Supreme Court and a decision there could affect every state, not just the 4th Circuit states. But there’s another important potential impact, too: Title VII of the Civil Rights Act of 1964. Title VII prohibits most public and private employers from discriminating based on “sex.” Like the U.S. Department of Education, the U.S. Equal Employment Opportunity Commission has determined that the prohibition on “sex” discrimination includes a prohibition on “gender identity” and “sexual orientation” discrimination. As Jon Davidson, legal director for Lambda Legal, explains: “I believe there is least as strong a case that courts are required to give the EEOC’s determinations that Title VII’s ban on sex discrimination prohibits discrimination based on gender identity and that excluding transgender employees from restrooms matching their gender identity violates Title VII [as] there was for the 4th Circuit to be obligated to defer to the similar determinations of the Department of Education.”
The Supreme Court, really? It’s possible, but LGBT legal activists think it’s not likely at this time. The Supreme Court rarely gets involved in a case at a preliminary stage. One of the big reasons it does take a case is to resolve a conflict among the various federal appeals circuits. Right now, only the 4th Circuit has ruled on Title IX, so there is no conflict, notes Jennifer Levi of GLBTQ Gay & Lesbian Advocates & Defenders. “So, even if the school eventually appealed to the Supremes, I would think it very unlikely that they would weigh in,” said Levi. Plus, she notes, there are only eight justices on the Supreme Court right now. A tie vote at the Supreme Court would leave the appeals decision intact, so it seems unlikely the Gloucester County School Board would appeal to the Supreme Court under these circumstances. More likely: If the full 4th Circuit upholds the panel decision, Shannon Minter of the National Center for Lesbian Rights predicts the school district will simply settle the lawsuit rather than go through the expense of a full trial when the 4th Circuit’s position is “so clear.”
Who’s the student who sued? His name is Gavin Grimm, and he’s a junior at Gloucester High School in the rural Virginia county of Gloucester. He’s 16 years old and has felt, since age 6, that he’s a male. A psychologist diagnosed Grimm with gender dysphoria, a condition in which a person strongly identifies as a gender different from his or her physical gender attributes. His parents helped him change his name, secure treatment to transition to a male identity, and inform and seek help from school officials. Grimm does not participate in physical education classes and did not seek use of the boys’ locker room, but he did seek use of the boys’ restroom. He explained that, in girls’ restrooms, girls reacted negatively to his presence because they perceive him to be a boy.
How did this land in court? School officials initially cooperated and allowed Grimm to use the boys’ restroom. Things went well for seven weeks then, according to court documents, some parents of other students complained, and school board officials held hearings. At those hearings, some parents expressed hostility toward Grimm, calling him a “young lady” and a “freak.” Some warned that allowing him to use the boys’ restroom would lead to sexual assaults and prompt boys to dress as girls in order to enter the girls’ restrooms. In response, the school board adopted a policy requiring that transgender students use “an alternative appropriate private facility.” But Grimm said that policy increased his feeling of being stigmatized.
Who was on the student’s side? The ACLU, Lambda Legal, the Transgender Law Center, the National Center for Lesbian Rights, GLBTQ Gay & Lesbian Advocates & Defenders, the Transgender Law & Policy Institute, the U.S. Justice Department, and school administrators in California, Florida, Illinois, Massachusetts and several other states, as well as the gay Whitman-Walker Clinic in Washington, D.C.; the Gay and Lesbian Medical Association; and the Gay, Lesbian, & Straight Education Network.
Which judges participated? Judge Henry Floyd (an appointee of Presidents George W. Bush and Barack Obama appointee) wrote the decision, which was joined by Senior Circuit Judge Andre Davis (an appointee of Presidents Bill Clinton and Barack Obama). Judge Paul Niemeyer (an appointee of Presidents Ronald Reagan and George H.W. Bush) concurred in part and dissented in part.
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