Diversity & Inclusion

4th Circuit ruling favors transgender student

by Rachael Luzietti

After the Norfolk federal district court refused to order the Gloucester County School Board to grant the student’s request, he appealed to the U.S. 4th Circuit Court of Appeals (whose rulings apply to all Virginia employers). Recently, the appeals court reversed the district court’s decision and issued a ruling favorable to the student.  Transgender Sign

A recap of the lawsuit

Gavin Grimm is a junior at Gloucester High School who identifies as male, although he is biologically female. He sought permission to use the boys’ restroom, but his request was denied. Represented by the American Civil Liberties Union (ACLU), he filed a lawsuit against the county school board in the U.S. District Court for the Eastern District of Virginia.

Grimm’s lawsuit challenges the school board’s restroom policy, which requires all students to use the restroom that matches their physical gender. He contends that the policy violates federal antidiscrimination law and the U.S. Constitution. As part of his suit, he asked the Norfolk federal court to require the school board to allow him to use the boys’ restroom while his case is litigated.

Grimm’s request was denied by U.S. District Court Judge Robert G. Doumar. At the court hearing, Judge Doumar expressed concern about the precedent a ruling favorable to Grimm would set. The judge also said he was worried about the harassment Grimm might face if he is permitted to use the boys’ restroom. The ACLU appealed Judge Doumar’s decision to the 4th Circuit.

Decision on appeal

The appeal was heard by a panel of three judges. In a 2-1 decision, the appeals court reversed Judge Doumar’s ruling and sent the case back to the district court for further proceedings.

In its written opinion, the 4th Circuit looked to Title IX of federal education law, which prohibits discrimination on the basis of sex in educational programs or activities that receive federal funding. The court reasoned that the law prevented the school board from barring Grimm from using the bathroom corresponding with his gender identity.

In reaching its conclusion, the court relied on the U.S. Department of Education’s (DOE) interpretation of federal law. The DOE is charged with interpreting and enforcing Title IX, and the 4th Circuit said that Judge Doumar failed to give sufficient weight to the department’s views.

Specifically, the 4th Circuit noted that the DOE’s Office for Civil Rights has issued an opinion letter interpreting Title IX as requiring schools to “generally . . . treat transgender students consistent with their gender identity.”

Next steps

The Gloucester County School Board has said that it disagrees with the decision of the appeals court. The school board argues that restrooms are not “educational in nature” and therefore aren’t covered by Title IX. As a result, the board has asked that the case be reheard by all 17 of the 4th Circuit judges, not just a panel of three judges.

Although Grimm’s case arose in Gloucester County, its implications are being felt throughout the 4th Circuit, which includes the Carolinas, Maryland, and West Virginia. Specifically, the court’s ruling may have implications for a recent North Carolina law that has already drawn a lot of public attention. That law, HB 2, requires transgender individuals to use the public restrooms that match the gender listed on their birth certificates. There are several pending lawsuits challenging the validity of HB 2, and the ultimate decision in Grimm’s case will affect, if not control, the outcome of those challenges.

Virginia’s AG weighs in

Virginia’s Attorney General (AG), Mark Herring, has recently opined on the general application of Virginia’s antidiscrimination laws to transgender individuals. Although his opinion is not binding, Herring says that a violation of Title VII of the Civil Rights Act of 1964 based on an individual’s sexual orientation or gender identity is also a violation of Virginia’s law prohibiting discrimination based on sex. Herring’s opinion noted the trend in federal courts to “prohibit discrimination against LGBT individuals in many circumstances.”

The AG’s opinion is, in part, a response to Delegate David A. LaRock’s (R-Loudoun) request for definitions of the terms “gender identity” and “sexual orientation” and how they fit within Virginia’s laws against discrimination based on sex. Herring’s opinion has drawn criticism from LaRock and a number of organizations, including the Family Foundation of Virginia. LaRock claims the AG’s opinion is contrary to the law’s “original intent,” while the Family Foundation claims it’s based on his “political aspirations.”

Bottom line

The outcome of Grimm’s case will have an impact on the rights of transgender individuals in a variety of circumstances. Although the case didn’t arise in the employment context, we can already see that it’s having an impact beyond its own specific facts and circumstances. In fact, the Equal Employment Opportunity Commission (EEOC) has cited the 4th Circuit’s decision as support for its legal position that employers must provide transgender workers access to the restroom that corresponds to their gender identity or risk a lawsuit for sex discrimination under Title VII.

As an employer, you have the responsibility to make sure your employees are treated equally and protected from discrimination. That “golden rule” is a good one to follow for all of your employees, no matter their sexual orientation or gender. If you are faced with issues involving transgender employees and have concerns about your legal obligations, you should consult with experienced employment counsel knowledgeable about this fast-changing area of discrimination law.

Rachael Luzietti is an attorney with DiMuroGinsberg, PC in Alexandria, Virginia.  She may be contacted at rluzietti@dimuro.com.