Within the last couple of weeks, two decisions were issued that relate to transgender students’ use of facilities in public schools.  In Grimm v. Gloucester County School Board, on remand from the U.S. Supreme Court and the U. S. Court of Appeals for the Fourth Circuit, a federal district court judge denied the Gloucester County school board’s motion to dismiss the plaintiff’s amended complaint. The plaintiff, a transgender student named Gavin Grimm, alleges the school board’s policy prohibiting his use of the bathroom that corresponds to his gender identity, rather than his biological sex, is unconstitutional. Likewise, in Doe v. Boyertown Area School District, the U.S. Court of Appeals for the Third Circuit unanimously rejected an appeal from the denial of a preliminary injunction seeking to block the school district’s policy allowing students to use sex-segregated facilities corresponding to their gender identity.

Grimm v. Gloucester County School Board

In Grimm, Judge Wright Allen ruled that the plaintiff alleged sufficient facts to support his claims that the policy at issue constituted impermissible sex stereotyping in violation of his rights under both Title IX and the Equal Protection Clause of Fourteenth Amendment. Judge Allen noted two other federal appeals courts (Sixth Circuit and Seventh Circuit) have ruled that excluding transgender youths from restrooms corresponding with their gender identity may subject them to prohibited discrimination. The Court also concluded that “allegations of gender stereotyping are cognizable Title VII sex discrimination claims and, by extension, cognizable Title IX sex discrimination claims.”

This case was originally filed in 2015 in U.S. District Court for the Eastern District of Virginia. The case went to the Fourth Circuit Court of Appeals and was set to be heard before the Supreme Court in 2017. The Trump Administration, however, withdrew Obama-era guidance on facilities use by transgender students.  The Fourth Circuit Court had found that the Dear Colleague Letter should be followed, and Gavin should be allowed to use the bathroom of the gender he identifies with. As a result of that guidance being withdrawn, the Supreme Court remanded this case without issuing a decision. Prior to the remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue. The Fourth Circuit Court of Appeals sent this case back to the trial court, which is what resulted in this decision by Judge Wright Allen.

Doe v. Boyertown Area School District

In Doe v. Boyertown, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously concluded, fifteen minutes after oral argument, that the plaintiffs/appellants had failed to meet the high burden to obtain a preliminary injunction.

The school district’s policy permits students identifying as transgender to submit a request to use the facilities for the gender to which they are transitioning. Plaintiffs in this case alleged that the policy violates their constitutional right to bodily privacy and federal law against sexual discrimination in schools. Plaintiffs plan to challenge the ruling by filing a petition seeking en banc review by all of the judges of the Third Circuit.