Gavin Grimm’s senior year in high school will be more memorable than most—how many young people are at the heart of Supreme Court litigation regarding the rights of transgender students?
Last year, when he and his mom told Gloucester High School officials about his transition, they agreed to treat him like the boy Gavin always knew he was. But upon getting wind of the situation, the School Board objected. At meetings on the issue, some folks referred to Gavin as a girl or “young lady.” Others went further, for example, calling him a freak. Another likened the young man to a person who believes he’s a dog “and wants to urinate on fire hydrants.” Ultimately, the board voted to prohibit Gavin from using the boys’ room and required the school to provide unisex bathrooms for him, which Metro Weekly reported were repurposed broom closets.
Gavin and his mother sued the Gloucester County School Board, alleging that it violated Title IX and the Constitution by prohibiting him from using the boys’ bathroom at his high school. A federal district court dismissed Gavin’s case, but the Fourth U.S. Circuit Court of Appeals reinstated the matter, concluding in part that Title IX’s prohibition against sex discrimination in federally funded education applies to disparate treatment based on gender identity. And, it ordered the school board to allow Gavin to use the boys’ bathroom. The school board sought Supreme Court review and a stay of the appeals court’s order, calling it extreme” and “a particularly devastating blow to the School Board’s authority.” With the status quo in place at Gloucester High, Gavin likely will have graduated by the time the Court decides this matter.
What is “Sex?
At the heart of the case is the meaning of Title IX’s broad prohibition against sex. Two letters from Obama Administration officials answer that question, raising the issue of whether they constitute policy to which school districts must adhere and courts should defer. In my mind the answer is yes.
In addressing issues of discrimination against transgender persons, courts and administrations long have relied upon the Supreme Court’s 1989 decision in Price-Waterhouse v. Hopkins. That landmark case held that requiring people to conform to gender roles can violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination [as well as discrimination based on race, ethnicity, and religion]. In that case, accounting giant Price-Waterhouse denied Ann Hopkins partnership because she was, in the words of the partners, “macho” and failed to take their advice to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In other words, she failed at being what the partners perceived as “woman. Relying on Price Waterhouse, at least four federal appeals courts have held that bias based on transgender status can be sex discrimination. Thanks to Price-Waterhouse, the law has been relatively clear since 1989 that sex discrimination isn’t just limited to distinctions based on biology.
The “Dear Colleague” letter issued by the Departments of Education and Justice cited Price-Waterhouse, as well as the federal appeals court cases, as support for its policy guidance, as did an earlier letter by an official of the Office for Civil Rights. Despite the board’s protestations, there’s nothing new about looking to Title VII to understand the scope of Title IX’s proscription against sex discrimination. In Franklin v. Gwinnett County Public Schools, for example, the Supreme Court looked to Title VII in explaining that sexual harassment could violate Title IX. Both statutes are equally silent about sexual harassment, by the way. Agency action, litigation, and court decisions helped put some meat on the bones of the law’s broad sweep against sex discrimination. The ED/DOJ transgender policy is yet another mile marker in understanding the law. And, not surprisingly, other agencies have followed suit. The Equal Employment Opportunity Commission, and the Department of Labor’s Occupational Safety and Health Administration also have issued publications about employers’ legal obligations regarding transgender workers. If the complaining school districts, as employers, were up to date on their responsibilities for teachers and staff, then the ED/DOJ policy shouldn’t have been a surprise to them.
The Court will schedule the matter for argument and likely decide the case by June. If eight Justices remain on the bench because of continued intransigence on the part of the Senate, and they split evenly over the matter, the Fourth Circuit’s opinion will be affirmed. No national law will be made, as we’ll have to wait for another case to make its way to the Court.