A United States appeals court on Wednesday cited June’s landmark Supreme Court decision on gay and transgender issues in a decision finding that a transgender male student was discriminated against by not being allowed to use the men’s restroom.
In a 2-1 decision, the Richmond, Virginia, court stated that Gavin Grimm, a student who sued a Virginia school board in 2015, was the victim of “a special kind of discrimination against a child that he will no doubt carry with him for life.”
Judge Henry Floyd wrote in the court’s majority opinion that in light of the June Supreme Court decision Bostock v. Clayton County, which found that gay and transgender people are protected by nondiscrimination employment laws, the court had “little difficulty in holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him.”
Floyd added that although Bostock “expressly” excluded a discussion of how bathroom cases should be decided, the basic principles of nondiscrimination were the same. The landmark Supreme Court case, Floyd said, deals with Title VII employment laws in the Civil Rights Act, and he said that Justice Neil Gorsuch’s reasoning in the majority opinion, that rules regarding gender identity is discrimination “on the basis sex,” could easily be used to interpret Title IX, which prevents sexual discrimination in schools.
“Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender,” Floyd wrote. “Unlike the other boys, he had to use either the girls restroom or a single-stall option. In that sense, he was treated worse than similarly situated students.”
In a dissent, Judge Paul Niemeyer said that the decision ran contrary to commonly held biological definitions of sex.
The American Civil Liberties Union, the legal nonprofit organization representing Grimm, celebrated the decision as an expansion and affirmation of Bostock, a case in which the ACLU was also involved.
“Transgender students belong in our schools,” senior staff attorney Josh Block said. “The court once again ruled that school’s obligation to create an environment that is safe and welcoming for all students includes transgender students.”
Grimm’s case has been the subject of a long legal battle. It was set to be heard before the Supreme Court in 2017 but was sent back to lower courts after President Trump rescinded Obama-era requirements on transgender bathroom access. The case has the potential to be appealed back to the Supreme Court.
After the Bostock decision was delivered, many social conservatives feared that the legal thinking behind it would inevitably be extended to cover Title IX. A collection of schools led by the Catholic University of America and Brigham Young University filed an amicus brief before Bostock was decided. The schools expressed fears that a decision in favor of transgender rights could imperil their ability to operate according to their religious beliefs.
