Marty Lederman, Michael C. Dorf, Samuel Bagenstos, Leah Litman  //  5/17/17  //  Commentary


A major case is making its way through the Fourth Circuit Court of Appeals, and it’s not about the legality of Executive Order 13780 (the ban on entry into the United States by nationals of several Muslim-majority countries).  The case is G.G. v. Gloucester County School Board, which concerns whether Title IX of the Education Amendments of 1972 requires schools receiving federal funds to permit transgender students to use restrooms corresponding to their gender identity. 

Title IX prohibits recipients of federal education funds from subjecting students to discrimination on the basis of sex.  Title IX also prohibits funding recipients from excluding students from participation in, or denying students the benefits of, any education program or activity on the basis of sex.

G.G. is before the 4th circuit on remand from the Supreme Court, which was set to hear the case, but ultimately decided not to do so after the Trump administration withdrew the 2015 Department of Education guidance letter that had construed Title IX.  Among the issues before the 4th circuit is whether Grimm’s Title IX claim should be dismissed, and whether Grimm is entitled to a preliminary injunction requiring the Board to allow Grimm to use the restroom corresponding to his gender identity.  (Grimm had previously obtained a preliminary injunction from the 4th circuit, which was later vacated.  Senior Judge Davis wrote a remarkable concurring opinion to the Fourth Circuit’s order, which Judge Floyd joined. Judge Davis has recently retired, and therefore a third judge will be joining Judges Floyd and Niemeyer in hearing the case on remand.) 

As was true in the Supreme Court, the School Board is arguing that the Congress that enacted Title IX intended “sex” to refer only to what the Board policy calls “biological genders.”  That term is at best vague, even as applied to this case. Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; he presents as male in virtually all material respects. The Board, however, treats him as “female” because of his external reproductive organs. The Board also argues that this treatment is consistent with Title IX, which generally permits restroom segregation between males and females.

Plaintiff/appellant Gavin Grimm, also echoing the arguments he[1] made in the Supreme Court, is arguing that the School Board’s policy discriminates against him on the basis of sex because the term “sex,” as used in Title IX, includes gender identity. That is a potentially compelling argument, but it is possible the court of appeals will not want to reach it if the case can be decided on narrower or more straightforward grounds.

As we wrotewhen the case was before the Supreme Court, it can be. An amicus brief that the four of us filed on Monday argues that the school board policy excluding Grimm from the common restrooms, thereby publicly stigmatizing him as unfit to use the same restrooms as all other boys, discriminates against him based on sex in the most literal way: it excludes him from the male restrooms on the basis of his external sexual anatomy.

That exclusion, we argue, is undoubtedly “based” on sex and, as we explain at length in our brief, Title IX presumptively forbids such sex-based segregation. To be sure, a longstanding federal regulation permits federally funded educational institutions to establish sex-segregated restroom facilities, and we argue that that rule is a proper reading of Title IX as applied to most students, primarily because it is a rare case of sex-segregation that does not inflict any harm on them. Nevertheless, the school board’s policy contravenes Title IX (and is thus invalid) when applied to transgender students because of the severe harm it inflicts on them without furthering any important institutional interests.

For the details of our argument, we urge interested readers to check out our brief, which we wrote with co-counsel Kevin Russell and Eric Citron.

 

[1] Liberty Counsel mis-gendered Grimm on the caption of their amicus brief, as they did in the Supreme Court.  The Supreme Court reprimanded Liberty Counsel; it is not clear what, if anything, the Fourth Circuit will do.


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