Virginia’s 4th Circuit Court of Appeals heard arguments today in a years-long legal challenge brought by a transgender man who sued his school board after he was barred from using the boys’ bathroom at his high school.
Last year a federal judge ruled in favor of Gavin Grimm, who argued that the Gloucester County School Board discriminated against him by requiring him to use a girls’ restroom or private bathrooms at school. The judge ruled that Grimm, who was born female but transitioned to male, was discriminated against and that his rights were violated under the Constitution’s equal protection clause and under Title IX, a federal policy that protects against gender-based discrimination.
In arguments Tuesday, the school board claimed that Grimm is still physically female and was treated like other students when he was required to use the girls’ restroom or a private unisex bathroom. They also argued that the law protects against discrimination based on gender, not gender identity.
“The [school board] and school personnel always treated Gavin Grimm with respect. From the beginning, the school administration and personnel were accommodating of Grimm’s request to be called by his new name using male pronouns; the only exception was a restroom policy that applied to the entire school system,” David Corrigan, who represents the Gloucester County School Board, said. “Our position is that sex is a binary concept that you have males and females. The evidence shows that Grimm is not a boy, despite chest reconstruction surgery and hormone therapy Grimm remains anatomically female.”
Corrigan argued that the court should appeal the previous ruling in favor of Grimm, because the school board provided a separate, private bathroom.
“What you’ve established here at least for a class of individuals like Grimm is what you would call a separate but equal bathroom, right?” Judge James Wynn, Jr., asked Corrigan during oral arguments. “As a matter of fact no one is using that [private] restroom except for Grimm that’s a statement of fact. That’s like saying a black school is open to anybody but you never had a white student go to one of those schools. I actually went to one of those schools, I know what I’m talking about on that.”
Grimm’s attorney, Joshua Block, agreed with this argument and said the school board’s policy to create a private bathroom was created “only to remove Grimm from the boy’s restroom and place him in a separate, alternate facility that no other student was required to use.”
“The undisputed evidence showed that these separate facilities were not merely different, they were unequal for two different reasons,” Block said. “The first is that it was stigmatizing and humiliating and the second independent reason why these separate facilities were unequal was as a practical matter; they were inadequate and difficult to access.”
Grimm’s lawsuit was once a federal test case that drew national attention. He graduated from high school in 2017.
The Associated Press contributed to this report.