Diversity & Inclusion

Virginia Bathroom Gender Dispute Update: 4th Circuit to Answer Critical Question

Although he’s been out of high school for more than a year, Gavin Grimm continues to pursue his case against the Gloucester County School Board for refusing to allow him to use the high school restroom of the gender with which he identifies. A recently granted appeal on a novel question of law at the heart of Grimm’s case is likely to have profound impact on not only his claims but also employers and employees alike in the coming years.

School Board’s New Appeal

As we reported in the June 2018 issue of Virginia Employment Law Letter, U.S. District Court Judge Arenda Wright Allen in Norfolk recently ruled that Grimm had sufficiently pleaded a claim of gender stereotyping discrimination in violation of federal education law. At issue was the Gloucester County School Board’s requirement that all students use the restroom of their sex at birth, rather than the sex with which they identify. That policy prevented Grimm, who was born female but identifies as male, from using the boys’ restroom at the high school he was attending.

Although the high school said Grimm could use a private restroom, Judge Allen found that the facility’s inconvenient location as well as the stigmatization inflicted on him by the school board’s policy caused harm. In her May ruling, the judge allowed Grimm to seek monetary damages for the injuries he claims to have suffered.

Does Title IX Cover Gender Identity Bias?

Judge Allen recently permitted the school board to appeal her May ruling on an expedited basis and ask the 4th Circuit in Richmond to decide whether Title IX of the Education Amendments of 1972 prohibits gender identity discrimination. The judge is allowing the board to appeal in large part because the question is an important and novel one for not only education law under Title IX but also civil rights law in general. The answer will affect the proper interpretation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex by all employers of 15 or more employees.

Neither the 4th Circuit nor the U.S. Supreme Court has considered whether gender identity discrimination would be prohibited under Title VII, which is often interpreted and applied in the same manner as Title IX.

If So, Title VII May Cover it, Too

If the 4th Circuit decides that Title IX prohibits discrimination based on gender identity, it will be the functional equivalent of a ruling that Title VII prohibits the same type of bias. Such a ruling would be groundbreaking. The impact would be felt in not only Virginia but also the other states within the 4th Circuit (Maryland, North and South Carolina, and West Virginia). Because Grimm’s lawsuit will have such important ramifications, we’ll continue to keep you updated on the legal developments in this seemingly never-ending legal saga.

Editor’s note: For further discussion of this highly controversial case, see the following articles published in past issues of Virginia Employment Law Letter: “Gender identity and its effect on your workplace” on pg. 2 of our August 2015 issue; “Virginia court rules against transgender student” on pg. 3 of our October 2015 issue; “Transgender employees’ bathroom choice: a tempest in a toilet bowl” on pg. 4 of our December 2015 issue; “4th Circuit ruling favors transgender student” on pg. 1 of our June 2016 issue; “VA school board will ask SCOTUS to review transgender bathroom case” on pg. 1 of our July 2016 issue; “Virginia transgender bathroom case makes it to the top” on pg. 1 of our November 2016 issue; “VA student’s transgender bathroom case will not pass ‘Go’ . . . yet” on pg. 1 of our April 2017 issue; “Gavin Grimm’s fight: ‘delayed, but not finished'” on pg. 1 of our May 2017 issue; “Gavin Grimm’s lawsuit starts afresh, and a ruling on transgender rights further delayed” on pg. 3 of

Rachael Loughlin is an attorney in the Richmond office of O’Hagan Meyer. She can be reached at rloughlin@ohaganmeyer.com.