The U.S. Supreme Court denied a petition for certiorari in the case of Grimm v. Gloucester County School Board on June 28, 2021. Justices Clarence Thomas and Samuel Alito said that they would have granted the petition. The denial leaves standing a Fourth Circuit ruling that interpreted Title IX and the Equal Protection Clause to prohibit discrimination against transgender students―a position that aligns with guidance from the Department of Education under the Biden Administration.
- Schools in the Fourth Circuit—as well as the Seventh and 11th Circuits, which have issued similar rulings—must allow transgender students to use the bathrooms that align with their gender identities.
- Schools should continue to follow the new guidance by the Department of Education advising that Title IX prohibits LGBTQ+ discrimination.
The Bottom Line
Every appeals court that has considered the issue has ruled that transgender students must be allowed to use bathrooms that match their gender identities. The Supreme Court’s denial of certiorari leaves those decisions standing. Based on these decisions and guidance from the Biden Administration, the Department of Education, and the Department of Justice, schools should evaluate and adjust policies that do not respect the gender identities of transgender students.
On Monday, June 28, 2021, the U.S. Supreme Court issued an order denying the Gloucester County School Board’s (the Board) petition for certiorari in Grimm v. Gloucester County School Board, a case addressing protections for transgender students that has been winding its way through the court system since 2015. The Board sought review of the Fourth Circuit ruling that requiring transgender students to use multi-user bathrooms different from their gender identities, or separate single-user bathrooms, violates both Title IX and the Equal Protection Clause of the 14th Amendment.
Gavin Grimm initiated this case while a student at Gloucester High School in Virginia after he was prohibited from using the boys’ bathrooms because he was assigned female at birth. Initially, Grimm used the boys’ bathroom, but after several complaints from parents of other students, the Board instituted a policy requiring transgender students to use a separate, single-occupancy, unisex bathroom. Although any student could use a single-occupancy bathroom, Grimm was the only student required to use it. Grimm filed a complaint in 2015 in the U.S. District Court for the Eastern District of Virginia, alleging that the Board’s policy violated Title IX and the Equal Protection Clause of the 14th Amendment by discriminating against him on the basis of his gender identity.
Grimm initially filed a motion for a preliminary injunction, which the district court denied. The Fourth Circuit Court of Appeals reversed and granted the injunction, based on the Obama-era Department of Education’s 2011 letter (the Dear Colleague Letter) that interpreted Title IX to prohibit discrimination on the basis of gender identity. The Supreme Court granted certiorari in 2016. After a change of administration, the Department of Education withdrew the Dear Colleague Letter. As a result, the Supreme Court decided not to hear the case and vacated and remanded the case back to the Fourth Circuit for further consideration in light of the withdrawal of the Dear Colleague Letter.
The Fourth Circuit ultimately dismissed Grimm’s motion for a preliminary injunction but allowed him to file an amended complaint in the district court. The district court then granted Grimm’s motion for summary judgment, holding that the Board’s bathroom policy violated both Title IX and the Equal Protection Clause.
In 2020, the Fourth Circuit affirmed the district court’s ruling. This time, however, the court relied not on any Department of Education guidance, but on the 2020 landmark Supreme Court case, Bostock v. Clayton County, holding that Title VII’s prohibition of discrimination on the basis of sex necessarily includes discrimination on the basis of sexual orientation and gender identity. The Fourth Circuit extended the Supreme Court’s reasoning to Title IX’s analogous prohibition of discrimination on the basis of sex.
As the Fourth Circuit’s decision and the Supreme Court’s denial of certiorari make clear, the Court’s landmark ruling in Bostock changed the legal landscape surrounding LGBTQ+ discrimination. When Grimm was before the Court in 2016, the underlying Fourth Circuit decision was based on administrative guidance with limited authority. The Fourth Circuit’s most recent ruling, however, was grounded in the Court’s reading of statutory language. Although the Supreme Court explicitly stated that the Bostock opinion did “not purport to address bathrooms, locker rooms, or anything else of the kind,” its decision not to hear the Grimm case allowed Bostock to be extended to provide exactly those protections. In addition, the Biden Administration's March 8 Executive Order and a subsequent memorandum from the DOJ have extended Bostock to the educational context.
Given the Biden Administration’s guidance and the existing appellate court decisions interpreting Title IX and the Equal Protection Clause to prohibit discrimination on the basis of gender identity, schools should review and adjust their policies as needed to comply. Attorneys in Ballard Spahr's Education Group is available to advise schools on how to ensure their policies comply with federal guidance and precedent, including how those laws may interact with applicable state law.
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