Thursday, May 24, 2018
Gavin Grimm's Transgender Discrimination Claim Moves Forward (Again), But This Time It Is an Even Bigger Victory
In 2015, Gavin Grimm, a transgender boy in rural Virginia, grabbed national headlines when he took the brave step to file a lawsuit and stand up against his school district. The district had for a while allowed him to use bathrooms consistent with his gender only to later deny him that right when concerned parents and school board members caught wind of it. He alleged that assigning students to restrooms based on their biological sex violated Title IX and the Equal Protection Clause of the 14th Amendment.
After a victory in the Fourth Circuit, the US Supreme Court granted certiorari. He also had the US Department of Justice and Department of Education on his side. He seemed prized to make history, although the limelight was not something he had sought. But then everything suddenly changed. President Trump won the election and the Departments of Justice and Education changed their position. Then an even stranger thing happened, the Supreme Court decided to not hear the case based on a change in the parties’ positions. The Court remanded the case to the Fourth Circuit, which vacated its earlier injunction against the school district. At least two judges on the Fourth Circuit lamented this result and praised Grimm, but agreed it was the correct result.
So yesterday’s news that Grimm had again won a legal victory was likely a surprise to most. I must admit that I thought his case was over. But alas, the procedures of justice are complex and longsuffering. Indeed, Grimm did secure a major victory yesterday. And it actually makes perfect sense.
The most important thing to keep in mind is that courts answer very narrow issues. Sometimes, for instance, the question in a case is not whether the plaintiff has good argument, but whether he filed his case on time. A plaintiff might very well have had his rights violated, but if doesn’t file the case within the statute of limitations, he case will be dismissed. Likewise, a plaintiff might file on time and make a great argument that his rights have been violated, but if he asks for the wrong remedy, a court might dismiss that case as well. When it does so, it is not a judgment on the “merits” of the claim, but on the appropriateness of the remedy or, even more narrowly, on the court’s authority to grant the remedy plaintiff wants.
Okay, so what does that have to do with Grimm’s case. Well, Grimm did not do anything wrong in his initial case, but the easiest route to victory when he filed—or the easiest grounds on which a court could rule for him—was to largely ignore the question of whether Title IX or Equal Protection as stand-alone legal principles entitled him to access to a restroom consistent with his gender. The Fourth Circuit did not answer the question of what his rights are under those laws. Instead, it sought to answer the question of whether the Department of Education’s judgment in the case was owed deference.The Department of Education had already issued policy guidance indicating that transgender students have a right to use facilities consistent with their gender. In other words, the Department interpreted Title IX as requiring this result. The issue for the Fourth Circuit was a technical one involving whether this was the type of circumstance in which an agency’s judgment is owed deference. This is basic 101 administrative law. It comes up all the time in every type of federal agency you can imagine. It has nothing, in particular, to do with Title IX.
The Fourth Circuit said the transgender guidance fit this test, issued an injunction, and Grimm was off to the races to the Supreme Court. But as noted above, by the time he got there, DOJ and the Department of Education had changed their “judgment” and, thus, there was nothing left to which defer. The Fourth Circuit opinion rationale simply fell apart at that point.
Plaintiffs, however, get to exhaust all their claims, so Grimm still had his big ones left in his back pocket: what does Title IX itself require, and what does Equal Protection require? It is on one of this bigger questions that Grimm won on yesterday.
The text of Title IX prohibits “sex” discrimination, the meaning of which is the key to the case. The court yesterday explained that
The parties dispute whether a transgender student's allegation of discrimination based on his or her transgender status can constitute a claim of sex discrimination under Title DC. Neither Title IX nor its regulations defines the term "sex." . . . . The Board also contends that the term "sex" "at a minimum includes the physiological distinction between men and women." Therefore, the Board argues, this Court must interpret Title IX as applying only to discrimination on the basis of physiological sex, rather than gender identity.
The court responded that this
construction may be an appealingly simple way of interpreting the term "sex." However, the Board argues that the Policy "distinguishes boys and girls based on physical sex characteristics alone," but fails to acknowledge that there are individuals who possess both male and female physical sex characteristics. As Mr. Grimm contends, attempting to draw lines based on physiological and anatomical characteristics proves unmanageable: how would the Board's policy apply to individuals 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? In Mr. Grimm's situation, how would the Board have continued to implement the Policy after Mr. Grimm's medical procedures?
The court further notes that the School Board’s
use of the term "biological gender" functioned as a proxy for physiological characteristics that a student may or may not have had. The term allowed the Board to isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics the Board believed that a male or female student should have.
And it is on those distinctions that Grimm ultimate won. The district court explained
The Supreme Court has constructed a framework for addressing sex discrimination claims brought by individuals who fail to conform to social expectations for their gender group. In Price Waterhouse v. Hopkins, the Supreme Court considered whether the plaintiff, a woman who was denied partnership in an accounting firm, had an actionable Title VII claim against the firm because the firm had allegedly denied her a promotion because she failed to conform to certain gender stereotypes related to women.
Firm partners advised the plaintiff that her partnership chances would improve if she were to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Six Justices of the Price Waterhouse Court agreed that Title VII barred discrimination not only based on the plaintiffs gender, but based on "sex stereotyping" because the plaintiff had failed to act in accordance with gender stereotypes associated with women.
. . . .
The First, Second, Third, Seventh, and Ninth Circuits have all recognized that based on the logic of Price Waterhouse, a gender stereotyping allegation generally is actionable sex discrimination under Title VII. . . . Although the Fourth Circuit has yet to apply Price Waterhouse expressly to Title VII claims brought by transgender individuals, 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.'"
This conclusion comports with decisions from the First, Sixth, Ninth, and Eleventh Circuits, all of which recognize that based on the gender-stereotyping theory from Price Waterhouse, claims of discrimination on the basis of transgender status are per se sex discrimination under Title VII or other federal civil rights laws. Numerous district courts have also concluded that a transgender individual can state a claim under Title VII for sex discrimination on the basis of a sex or gender-stereotyping theory.
And this holding is a big one. It shows that it does not really matter what DOJ or the Department of Education think about transgender students' rights. This court, along with several others, has now found for itself that Title IX protects transgender students in this context.
This case will surely move on to the Fourth Circuit, where things could, once again, get interesting. If the Fourth Circuit rules for Grimm, it will simply join a chorus of other circuit courts. When they all agree, the Supreme Court doesn't normally take the issue. In effect, why get involved if all the circuits agree on how to work out the problem? But if the Fourth Circuit rules against Grimm, it would create a circuit split and almost assure that Grimm would make his way to the Supreme Court for a second time.