G.G. v. Gloucester County School Board

Gavin Grimm had been born female and presented as female until high school whereupon he started to present himself as male, including using the boys' restroom at the school. Parents of other students at the school complained to the Gloucester County, Virginia school board, leading to the board passing a regulation requiring students to use the restroom equating to their biological gender and for transgender students to use one of three unisex bathrooms that has been installed.[1]

Grimm, under these conditions, found himself the subject of ridicule by the other students, and through his parent, sued the school board on grounds of Title IX discrimination and the Equal Protection Clause in June 2015 in the United States District Court for the Eastern District of Virginia. Grimm's case was concurrent to other similar cases in the country over transgender bathroom right usage, and the Obama administration's Department of Education had sent out guidance (the Ferg-Cadima letter) to all school boards but otherwise unpublished in Federal Register in January 2015 that stated that "a school generally must treat transgender students consistent with their gender identity."[2][1] Despite this position from the Department of Education, the District Court dismissed the suit on the basis that under Title IX, the school had provided comparable facilities as directed under 34 U.S.C. § 106.33. The court also rejected Grimm's request for a preliminary injunction to use the boys' restroom while litigation proceeded.[1]

Grimm appealed the dismissal to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a 2–1 decision in April 2016, overruled the District Court and ordered the case to continue. The majority held that the District Court had ignored the guidance in the Ferg-Cadima letter from the Department of Education, the controlling agency in Title IX protections, in dismissing the case and remanded the case, as well as to reconsider the preliminary injunction on Grimm's use of the boys' restroom.[1] In June 2016, the District Court granted the preliminary injunction to allow Grimm to use the boys' restroom.[3]

The Gloucester County school board petitioned to the Supreme Court. The school board raised questions on the Auer deference that the Fourth Circuit had relied on in giving weight to the Department of Education's interpretation of Title IX and via the unpublished Ferg-Cadima letter, and to whether the Department of Education's interpretation of comparable facilities or that of 34 U.S.C. § 106.33 had prevalence. The Supreme Court, in a 5–3 vote in August 2016, agreed to put a stay on the District Court's preliminary injunction, with Justice Stephen Breyer joining the conservative sides as to "courtesy" to maintain the status quo while the Court decided if they would take the case. Subsequently in October, the Court granted certification of the case, with the oral arguments later to have been heard on March 28, 2017.[4]

Shortly upon taking office in January 2017, President Donald Trump took steps to reject past guidance set by the Obama administration related to transgender rights. On February 22, 2017, Trump and Education Secretary Betsy DeVos formally reversed past Department of Education guidance including the Ferg-Cadima letter on claims the regulation was not based on a sound legal foundation, allowing schools to establish their own policies as necessary under Title IX.[5] Lawyers in Grimm's case recognized this drastically affected the legal underpinning of the case though had expected to be able to still argue in Grimm's favor on other points,[6] but on March 6, 2017, the Supreme Court vacated their case as a result of the change in the administration's policy, vacated the Fourth Circuit's prior ruling, and remanded the case back to the lower courts to be retried under the current interpretation of Title IX protections.[7]

Since 2017, Grimm had graduated from high school as well as underwent reassignment surgery to be recognized by the state as male,[8] and had amended the complaint to focus on the harm to his constitutional rights at school and the impact of intervening case law. The District Court rehearings were held in July 2019.[9] The District Court this time found for both of Grimm's claims on Title IX and Equal Protection Clause in August 2019, asserting that Grimm had faced emotional harm from using the restroom assigned to his biological gender.[10]

The school board appealed to the Fourth Circuit, which upheld the District Court's decision on August 26, 2020 on a 2–1 majority. The majority option was guided heavily by the recent Supreme Court decision Bostock v. Clayton County which had determined that in Title VII of the Civil Rights Act of 1964 for employment discrimination, "on the basis of sex" includes protection for sexual orientation and gender identity.[8][11]