When the Fourth Circuit Court of Appeals in Virginia ruled that Title IX of the Education Amendments of 1972 prohibits public school districts from discriminating against transgender students, it was a huge victory for not only Gavin Grimm, but for the transgender community as a whole. Ultimately, however, that victory was short lived when the United States Supreme Court vacated the decision of the fourth circuit, effectively reinstating a lower court decision that had dismissed Gavin Grimm’s Title IX claim.
Now, it appears that a different judge in that same lower court has given new life to the case and new hope to Gavin and all transgender public school students. Indeed, some of the language in the Court’s ruling goes beyond Title IX and the public school setting and into the world of employment discrimination as well.
Before there is too much celebration, it is important to state at the outset that this decision was not a ruling on the merits of Gavin’s case, meaning that the Court did not decide whether the school district actually violated Gavin Grimm’s rights as a transgender student. In this regard, the Court’s decision is entirely procedural. However, the court’s determination that transgender students have actionable protection under both Title IX and the Constitution is definitely cause for optimism. To understand the full significance of this procedural ruling, a little legal history is helpful.
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In 2015, Gavin Grimm filed the initial suit in federal district court seeking to enjoin the school district’s policy requiring students to use the rest room that corresponded to the sex assigned to them at birth, on the basis that the policy violated Title IX and the Equal Protection Clause of the 14th Amendment to the US Constitution.
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The District Court judge summarily dismissed Gavin’s Title IX claim, simply ruling that Title IX’s protection against discrimination based on “sex” did not include gender identity. The judge denied the injunction, without adjudicating the merits of the Equal Protection claim.
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Gavin appealed the dismissal of the Title IX claim to the US Court of Appeals for the Fourth Circuit. Relying exclusively on a guidance document from the Department of Education, the Fourth Circuit ruled that transgender students are protected under Title IX, and that Gavin’s Title IX case should have been heard.
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The school district appealed the Fourth Circuit’s decision reviving the Title IX case to the US Supreme Court, arguing that the guidance document was not legally binding because it was not an official regulation properly promulgated. Before the Supreme Court could rule on that question, the Trump Administration repealed the guidance document. Since that guidance was the basis of the Fourth Circuit’s ruling, the Supreme Court vacated the Fourth Circuit’s decision, essentially leaving in place the lower court ruling that had dismissed the case. The Title IX question was remanded all the way back down to the original court, where the Equal Protection claim was still pending.
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Meanwhile, the original District Court case was re-assigned to a different judge, who inherited the remanded Title IX question. Because there were still pending issues that were never been adjudicated (the Equal Protection claim), the newly assigned judge, invoking a rarely-used rule of federal procedure, decided to take an entirely fresh look at the Title IX question, even though another judge on the same court had already dismissed the claim.
The rule allows one judge to revisit a ruling by another judge on the same court if there was a significant change in the law while the case was pending. After Gavin’s case was filed, two other federal appeals courts besides the Fourth Circuit ruled that transgender students could sue for “sex” discrimination under Title IX, as have several district courts. Additionally, since 2015, there has been a groundswell in the federal courts in favor of permitting transgender individuals to sue for employment discrimination on the basis of “sex” under Title VII, which courts have historically looked to in determining the scope of Title IX protections. Relying on these developments, the new judge reinstated the Title IX case, overruling the previous decision of her colleague.
Since the court had retained jurisdiction over whether Gavin had a claim under the Equal Protection Clause, the judge decided that matter as well. In a very significant ruling, the Court not only determined that Gavin’s Equal Protection claim could proceed, but that the policy would be subjected to a heightened level of constitutional scrutiny because it is a sex-based classification.
So, Gavin’s case remains alive and well, and so do the hopes of transgender public school students everywhere.
Scott Michael Goodspeed is Assistant Director, Labor Relations at Norfolk Southern Corporation tasked with negotiating and administering various labor agreements with several rail unions.
