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High Court paves way for transgender-inclusive bathroom policies in school

WASHINGTON (CN) — A transgender teen who prevailed against his Virginia high school’s “anatomical sex” bathroom policy won’t face a Supreme Court showdown.

The justices quietly dispatched with the Gloucester County School Board’s appeal in an order list Monday, rejecting a petition that had the Fourth Circuit had “impos[ed] a one-size-fits-all solution to this vexing problem.” Per their custom, the court denied a writ of certiorari this morning without comment.

Meanwhile attorneys for former Gloucester student Gavin Grimm touted the case’s conclusion as a watershed moment in LGBT rights.

“Going forward, these decisions pave a new pathway for transgender students,” said Eden Heilman, legal director for the American Civil Liberties Union of Virginia.

Grimm, now long out of high school, reveled in the win as well.

“I was barred from the bathroom at my highschool 7 years ago, when I was 15,” he tweeted. “6 years ago, at 16, myself with the @ACLU / @ACLUVA filed suit in response to that discrimination. Twice since I have enjoyed victories in court, and now it’s over. We won.”

Monday marks the second time that the Supreme Court turned the bathroom case away without a hearing. The first occasion happened in 2017 based on shifting federal guidance.

In 2017, only months after the justices granted the school board a writ of certiorari during the Obama administration, the Justice Department under then-President Donald Trump rescinded a rule saying public schools that did not honor students by the genders with which they identify would lose their federal funding. Trump’s policy said states and school districts should set their own policies.

Grimm’s case returned to the Fourth Circuit where a panel affirmed 2-1 that Gloucester’s policies violated Title IX, the federal law prohibits sex discrimination in schools, and the 14th Amendment’s equal protection clause.

The ACLU’s Heilman noted that the the evidence of how Gloucester adopted its bathroom rules proved that the policy was not “substantially related to the privacy interests they avowed.” 

“Their stated reasoning was privacy, but when we asked how this policy solved the privacy concerns they were alleging they weren’t able to give any examples,” Heilman told Courthouse News over the phone Monday.

Last year’s ruling from the Fourth Circuit also noted some background endorsements of gay rights.  

“After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex,’” U.S. Circuit Judge Henry Floyd had said for the panel majority. “Even if the board’s primary motivation in implementing or applying the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board’s actions. Therefore, the board’s policy excluded Grimm from the boys restrooms ‘on the basis of sex.’”

While Monday’s order lacked comment from the court, it does note that the prominently conservative Justices Samuel Alito and Clarence Thomas wanted to hear Gloucester’s appeal. 

A look at last year’s dissent from U.S. Circuit Judge Paul Niemeyer could offer some insight into that perspective. 

“Affording all persons the respect owed to them by virtue of their humanity is a core value underlying our civil society. At the same time, our role as a court is limited,” the George W. Bush appointee wrote, parroting the position of the school board and some conservative activists that the lack of specific language about LGBT rights in federal law precludes such protections. 

“We are commissioned to apply the law and must leave it to Congress to determine policy,” Niemeyer had said.

Represented by Gene Clayton Schaerr with the Washington firm Schaerr Jaffe, Gloucester’s school board had argued that the Fourth Circuit’s decision would burden an already heavily taxed school system. 

“Neither Title IX nor the Equal Protection Clause mandates such a sweeping rule, and only this Court can reverse decisions adopting it in a growing number of circuits, supported now by the incoming Administration,” Schaerr wrote in the petition to the justices.

The attorney did not return requests for comment sent Monday.

Following Monday’s order, activists and legal experts are optimistic about just how much protections the combination of federal policy and law can offer transgender students in similar circumstances. 

“Unless Congress rolled back Title IX in some way this decision would still stand, but we’d have the equal protection clause too,” Heilman said.

She also thanked Grimm for being the face of the fight for so long.

“From the beginning of this his steadfastness and ability to be the face and voice behind this, even though he’s not in school anymore, we’re just in awe of him and hope it has a ripple effect in other cases like this across the country,” she said.

Leading up to Grimm’s lawsuit, Gloucester High School had first insisted that students had to use the single-sex bathroom that aligned with their birth anatomy. The school later said students could also use a nongendered restroom, but Grimm saw that alternative as a stigmatizing and forced him outside of traditional gender roles.

Monday’s order list is one of the last moves the Supreme Court will take before breaking for summer recess. It still must issue opinions, however, in a handful of cases that already given oral argument.