WASHINGTON — Gavin Grimm, the transgender activist, claimed victory this week after the U.S. Supreme Court declined to hear an appeal to a lower court ruling that sided against a Virginia school board’s policy barring students from using bathrooms that aligned with their gender identity.

“I am excited that after six years of fighting we finally have a resolution in this case,” Grimm told CBSN. Grimm initially filed suit in 2015, in a high-profile case that heralded a new era of advocacy for transgender “rights.” 

The Supreme Court, following its practice, did not clarify the reasoning behind its June 28 decision to deny review of the U.S. Court of Appeals for the Fourth Circuit’s ruling in Gloucester County School Board v. Grimm. The appellate court found that the school district’s policy violated Title IX, which bars discrimination at schools that receive federal funding.

Breaking with the other members of the Supreme Court, Justices Clarence Thomas and Samuel Alito said they would have accepted the school board’s appeal. 

Legal experts confirmed that the high court’s refusal to accept the case did not resolve pending legal challenges to bathroom policies in other circuits, and the high court could return to this issue in the future if another appellate court issues a ruling that conflicts with the decision in Grimm’s case. 

“It is crucial to recognize that a denial of review by the Supreme Court is not in any way a decision on the merits,” of Grimm’s legal challenge, Gerard Bradley, a professor at University of Notre Dame Law School, told the Register. 

“The practical effect of the denial is to leave in place the decision by the Fourth Circuit, but the denial is not even an implicit affirmation of that decision. 

“It does mean, however, that the Grimm decision in the Fourth Circuit will remain the law in that circuit until the circuit judges change their minds or the Supreme Court changes it for them.”

Ed Whelan, an influential constitutional scholar who blogs at National Review’s Bench Memos, also made clear that the high court’s denial of appeal did not grant Grimm a definitive legal victory.

“As a formal legal matter, the denial of cert means that the Fourth Circuit’s ruling will be governing precedent in the states covered by the Fourth Circuit: Maryland, Virginia, North Carolina and South Carolina,” Whelan told the Register. “The denial of cert is in no way an endorsement of the Fourth Circuit’s ruling, but some will try to pitch it that way.” 

Asked whether Grimm’s specific case posed legal questions that might not apply to other lawsuits filed by transgender students, Whelan said there was “[n]othing unique about [Grimm’s case]. But other cases will continue to arise, including cases that present the ‘same’ legal issue in different contexts: locker rooms, dorms, sports teams.”

Legal experts expect that the high court’s denial of cert will be used to pressure the 11th Circuit to deny St. Johns County’s petition for en banc review in a similar case, Adams v. School Board of St. Johns County.

But in a June 28 Bench Memos post, Whelan contended that it was “far more likely that some of the justices who voted to deny certiorari did so because St. Johns County’s petition was still pending and it therefore wasn’t yet clear whether there would be a conflict among the circuits.”

 

History of the Case

In 2014, Grimm, a biological female who identified as a transgender boy, began using the boys’ bathroom at Gloucester High School with the approval of school authorities.

After students and parents objected, a single-user bathroom was made available to Grimm, who pushed back, arguing that the policy stigmatized transgender students. 

The school district then approved guidelines directing students to use the facilities that corresponded with their biological sex, prompting Grimm to file suit, claiming that the guidance violated both Title IX protections against discrimination in education based on sex and the equal protection clause.

A district court ruled in Grimm’s favor. In 2016, the student’s legal argument got a boost from the Obama administration’s Department of Education’s Office of Civil Rights, which issued a “Dear Colleague” letter that directed school districts to permit access to bathrooms based on students’ gender identity and threatened to withhold federal funds if schools did not comply. 

That letter was cited by the Fourth Circuit when it first sided with Grimm in an earlier 2016 ruling. 

“The Fourth Circuit had relied on Obama’s guidance, but did not address substantive questions posed by the case,” Emilie Kao, director of the Richard and Helen DeVos Center for Religion & Civil Society at the Heritage Foundation, told the Register.

The Fourth Circuit ruling sparked a strong dissent from appellate Judge Paul Niemeyer, who wrote that the decision “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.” The U.S. Supreme Court afterward took up the case but did not issue a decision, instead sending it back to the lower courts. 

In 2020, when the Fourth Circuit took up the case for a second time, it delivered another legal victory to Grimm. 

This time the appellate court’s majority opinion cited the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia, which held that federal Title VII protections against sexual discrimination in employment applied to workers who were fired because they were gay or transgender. 

Though Justice Neil Gorsuch, the author of the majority opinion, said the ruling did not address Title IX cases, the decision has been cited by the Biden administration and by the courts backing strong protections for transgender students.

“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,’” stated the majority opinion.

The school board then asked the Supreme Court to decide whether the provision of single-user bathrooms could pass muster. 

 

Biden Administration’s Position

By then, the Trump administration had rescinded Obama’s transgender bathroom directive, removing one argument from the student’s legal case that called, in part, for deference to federal administrative policy. 

The Biden White House has since reversed Trump’s guidance, further complicating matters. Indeed, on the very first day of his new administration, Biden issued a sweeping executive order pledging to review federal regulations and policies that bar sex discrimination, and to make clear that they apply to sexual orientation and gender identity.

“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” states Biden’s executive order. “Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.”

Biden’s executive order confirmed that in the six years since Grimm filed suit, transgender rights has emerged a pre-eminent issue for progressive Democrats, and Grimm was elected to the national board of directors of the ACLU last year, which has emerged as a major advocate of LGBT rights.

Thus far, public schools have been a focal point for transgender activism, with students calling for more inclusive policies governing pronoun use and sports team participation. But as the movement gains traction, religious schools that hold to a biblical view of biological sex as immutable have also been roiled by student activists. 

For this reason, legal experts believe that Catholic institutions will feel the reverberations from Grimm’s case, whether or not the justices actually delivered a decisive legal victory for his cause.

“As a formal legal matter, Title IX applies to all schools that receive federal funds,” noted Whelan. “As a practical matter, the cultural pressure that bad decisions create will make things tougher for private and religious schools.”