Transgender Student Wins Bathroom Case

by | May 23, 2018

By Peter Dujardin

A federal judge on Tuesday sided with a Gloucester transgender student on whether he should have been able to use the bathroom of his choice in the public schools -- with the judge rejecting the Gloucester School Board's bid to dismiss the case.

U.S. District Judge Arenda L. Wright Allen sided with the student, Gavin Grimm, who contends in a federal lawsuit that a Gloucester County School Board policy requring him to use a separate bathroom -- rather than the boys' rooms -- stigmatized him and turned him into an outcast at Gloucester High School.

Wright Allen, who sits in Norfolk, did not rule on the case's overall merits Tuesday. But she denied a motion from lawyers with the Gloucester County School Board to toss the case, and she ordered that Grimm's lawyers and the attorneys for the board contact the court within 30 days to schedule a settlement conference to resolve the issue.

"The Board's argument that the policy did not discriminate against any one class of students is resoundingly unpersuasive," Wright Allen concluded in her 31-page order.

But the judge's ruling, while significant, is unlikely to be the last word in the case -- with the ultimate outcome expected to be determined by higher courts. The case still has the potential to set a legal precedent -- one way or the other -- in the heated social debate over transgender issues.

David P. Corrigan, the lead attorney representing the Gloucester School Board, did not return a phone call Tuesday seeking comment on what the board plans to now do. Gloucester School Board chairwoman Anita Parker did not immediately return a phone call, while vice chairman William Lee also could not immediately be reached.

"The School Board is aware of the District Court's decision denying the motion to dismiss (Grimm's) Amended Complaint," the school board said in a statement released late Tuesday. "The School Board continues to believe that its resolution of this complex matter fully considered the interests of all students and parents in the Gloucester County school system."

Grimm, now 18, was born a female but later told his parents -- and then the school system -- that he identified as a male, and he later underwent hormone therapy. He graduated from Gloucester High in June 2017, with the school system having argued unsuccessfully that the case was now moot in light of his graduation.

Grimm said Tuesday that Wright Allen's ruling brought him "an incredible sense of relief."

"After fighting this policy since I was 15 years old, I finally have a court decision saying that what the Gloucester County School Board did to me was wrong and it was against the law," he said in a statement released by the ACLU of Virginia, which has represented Grimm in the lawsuit. "I was determined not to give up because I didn't want any other student to have to suffer the same experience that I had to go through."

According to Wright Allen's ruling, Grimm and his mother initially approached Gloucester High School administrators in August 2014, saying that he is transgender and "would be attending school as a boy."

Though Grimm initially requested to use a restroom in the nurse's office, that was located in a remote part of the school, "and left Mr. Grimm feeling stigmatized and isolated," his lawsuit said. The location caused him to be late for class because it was so far from his classrooms, the suit added.

Wright Allen's ruling said Grimm sought permission from the principal to use the boys' room. He got that permission, and began using the boys' room in October 2014, using it "without incident" for about seven weeks. Grimm would later say that he experienced "no problems from students" during that time.

It was only after "several adults in the community" learned of Grimm's use of the boys' room, Wright Allen's ruling said, that the matter began to become an issue. The school initially planned to rectify those concerns by increasing partitions between urinals, adding privacy strips on stalls and designating certain single-stall restrooms for use by all students.

But speakers at a School Board meeting in December 2014 overwhelmingly said those ideas fell short.

At that meeting, the board passed a new policy, by a 6-1 vote, that said that the use of restrooms and locker rooms in the schools "shall be limited to the corresponding biological genders," and that "students with gender identity issues shall be provided an alternative private facility." The rules were immediately piut into effect. Grimm asserted that he not only felt excluded by those rules, but also that the rule made him often refrain from using any restroom at all -- leading him to be unable to concentrate in class and developing a urinary tract infection.

The case has taken a long route through several courts

In late 2015, Senior U.S. District Judge Robert G. Doumar ruled in favor of the Gloucester School Board, saying in part that the privacy rights of other male students trump Grimm's desire to use the boys' room. The ACLU appealed that ruling to the 4th U.S. Circuit Court of Appeals, which reversed Doumar's decision. In part, the appeals court cited a U.S. Department of Education guidance under former President Barack Obama that said that transgender students should be allowed to use the restrooms of their choice.

The Gloucester County School Board appealed the 4th Circuit's decision to the U.S. Supreme Court -- and the Supreme Court initially agreed to hear the case.

But then the Trump administration, to include Attorney General Jeff Sessions and Education Secretary Betsy DeVos, reversed the Justice Department's and Department of Education's guidance on the issue. That led the Supreme Court to decide not to hear the case after all. Instead, in March 2017 the high court sent the case back to the lower courts for more proceedings.

But instead of Doumar -- an old-school federal judge who is now 87 years old -- the case went to Wright Allen, one of the younger judges on the Norfolk federal bench. A former federal public defender, Wright Allen is often seen as a more liberal-leaning judge. She made a big ruling in a same-sex marriage debate a few years ago, saying that gays and lesbians have the constitutional right to marry in Virginia.

It couldn't be determined Tuesday why Doumar didn't get the case the second time, given that cases traditionally are sent back to the same judge who heard them the first time. But Tuesday's ruling makes clear that Wright Allen views the merits of the case very differently than did Doumar.

"Preventing Mr. Grimm from using the boys' restrooms did nothing to protect the privacy rights of other students, but certainly singled out and stigmatized Mr. Grimm," Wright Allen wrote. She said there were "many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys' restrooms."

"It's obviously a strong ruling in favor of Gavin Grimm," said Carl Tobias, a law professor at the University of Richmond. "I haven't read it all, but she rejects the argument made by the School Board. I think (Grimm) can claim that this is a victory."

Tobias said he thought the Gloucester School Board would appeal the case. "My sense is that the School Board has been fighting it pretty vigorously, so why would they stop now?" he said. "They have fought it all the way along."

Joshua Block, an ACLU attorney handling the case, agreed -- saying the Gloucester School Board "has been fighting tooth and nail on this issue."

There are very few facts in dispute in the litigation, Block said, with the two sides sparring excluively over varying interpretations of the law on the issue. Block said he thought that the school board's lawyers might ask to be allowed to file "an early appeal" based on Wright Allen's ruling, "or ask that a final judgment be entered" so that the court's final decision can be more quickly appealed.

"But for this case, I stopped making predictions long ago," Block said.

(c)2018 the Daily Press (Newport News, Va.)