United States: "Here We Go Again": Transgender Bathroom Dispute Headed Back To The Fourth Circuit

Executive Summary: The protracted case of Gavin Grimm is set to be heard once again by the United States Court of Appeals for the Fourth Circuit. Grimm, a transgender male, was denied use of the boys' bathroom while a high school student in Gloucester County, Virginia. The 2015 decision by the United States District Court for the Eastern District of Virginia dismissing Grimm's lawsuit was appealed to the U.S. Supreme Court before being remanded back to the District Court in early 2017. On May 22, 2018, District Court Judge Arenda Wright Allen denied Gloucester County's renewed motion to dismiss Grimm's case. Joining a long list of other courts, Judge Allen held that discrimination based on gender identity falls within the Price Waterhouse v. Hopkins gender stereotyping theory and is, therefore, a per se violation of Title IX of the Education Amendments Act of 1972, as well as a violation of the Equal Protection Clause of the Fourteenth Amendment. On June 5, 2018, Judge Allen granted Gloucester County's motion seeking immediate review by the Fourth Circuit. Grimm responded via Facebook, "[h]ere we go again." The Fourth Circuit is the federal appeals court with jurisdiction over the federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.

Background:

Grimm's sex assigned at birth was female. He began his gender transition in 2012 when he was a 15-year-old sophomore at Gloucester County High School. He used the boys' bathroom without incident during his transition, until December, 2014, when the Gloucester County School Board adopted a policy requiring students to use the bathroom consistent with their biological sex. Now banned from using the boys' bathroom, Grimm brought suit in the Eastern District of Virginia, claiming that the School Board policy violated Title IX and the Equal Protection Clause. On September 17, 2015, the court dismissed Grimm's Title IX claim, holding that gender identity does not fall within Title IX's definition of "sex." The court did not address the Equal Protection claim.

Grimm appealed to the Fourth Circuit. Relying on Obama-era guidance issued by the U.S. Department of Education's Office for Civil Rights (OCR) that public schools "generally must treat transgender students consistent with their gender identity," the Fourth Circuit reversed on April 19, 2016. A little less than a month later, on May 13, 2016, the Obama Department of Education and Department of Justice jointly issued additional guidance consistent with that of the OCR. On October 28, 2016, the U.S. Supreme Court granted certiorari in Grimm's case. However, on February 22, 2017, a month before oral arguments were scheduled, the newly sworn-in Trump Administration reversed the Obama Administration's guidance. The U.S. Supreme Court then remanded the case back to the Fourth Circuit for further proceedings to determine what effect, if any, this new guidance would have on Grimm's claims. The Fourth Circuit, in turn, remanded to the District Court.

Judge Allen's Decision:

On remand, Grimm amended his complaint. Gloucester County again moved to dismiss on the grounds gender identity is not protected by Title IX or the Equal Protection Clause. In her May 22, 2018 decision, Judge Allen disagreed. Relying on Title VII of the Civil Rights Act of 1964 – which prohibits discrimination "because of sex" in employment – for guidance, Judge Allen looked to the "sex stereotyping" theory first recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins. In Price Waterhouse, a female employee was denied a promotion after being told by her supervisors that she was not feminine enough. The Price Waterhouse Court held that gender stereotyping is a form of sex discrimination prohibited by Title VII.

Judge Allen noted that while the Fourth Circuit had not yet addressed whether gender identity discrimination constitutes gender stereotyping, the District of Maryland and the First, Ninth and Eleventh Circuits have addressed and answered that question in the affirmative. Accordingly, Judge Allen held that "discrimination on the basis of transgender status constitutes gender stereotyping because by definition, transgender persons do not conform to gender stereotypes" and that "pursuant to the logic of Price Waterhouse, transgender discrimination is per se actionable sex discrimination under Title VII" "and, by extension," it is also "per se actionable...under Title IX." Judge Allen also held that the Equal Protection Clause provides similar protections, rejecting the idea that student privacy concerns are a legitimate governmental interest justifying the policy.

Appeal to the Fourth Circuit:

The LGBTQ community, including Grimm, and its supporters are rejoicing over this ruling. The Gloucester County School Board, however, is not, and has announced its intention to continue defending its policy. Grimm and his attorneys have also made public statements that this is an issue that ultimately needs to be addressed by the U.S. Supreme Court. Thus, with consent from Grimm, on June 1, 2018, the Gloucester County School Board attorneys sought permission from Judge Allen for immediate appeal to the Fourth Circuit, a right which is not automatic in intermediate orders such as this one. On June 5, 2016, Judge Allen granted permission for the interlocutory appeal because (1) the issue is one of law; (2) there is a reasonable difference of opinion as to how the law should be interpreted; and (3) resolving this legal issue will likely lead to resolving Grimm's case. All further proceedings have been stayed pending the outcome of this case in the Fourth Circuit and perhaps the U.S. Supreme Court.

Employers' Bottom Line:

Judge Allen joins an increasing number of federal judges, at both the trial court and appellate levels, to conclude that discrimination based on gender identity – and in some cases sexual orientation – is illegal gender stereotyping prohibited by Title VII and Title IX. As protections for transgender individuals increase, employers and schools are encouraged to consider putting in place policies to assist employees and students undergoing gender transition, and to provide training for human resources, managers, supervisors and teachers in how to effectively administer these policies and accurately and effectively address any questions from colleagues and/or students. Employers and schools should consider implementing policies that allow transgender employees and students to use the bathroom of their choice. It should be noted that requiring a transgender employee to use a single-stall bathroom can constitute discrimination according to many state and federal agencies. Instead, single-use bathrooms can be made available for those employees and students who may feel uncomfortable sharing a bathroom with a transgendered individual or for transgender employees or students to use should they prefer using a single-stall restroom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions