Last week, amid a flurry of opinions and other actions, the U.S. Supreme Court made a notable decision not to act when it declined to review Gloucester Cty. School District. v. Grimm, a 4th Circuit Court of Appeals decision involving the rights of transgender students. The court’s decision was not unanimous – Justice Alito and Justice Thomas would have reviewed the case – but the 7-2 vote means the 4th Circuit’s decision will stand.
When the 4th Circuit reached its decision, the court said the school board had discriminated against the student, Gavin Grimm, by denying him the right to use the bathroom that aligned with his gender identity. The high school had offered alternatives to Grimm, including using the nurse’s room and a distant, one-stall, private bathroom, or expected him to use the restroom that corresponded to the gender he was assigned at birth. Grimm has stated that these alternatives were humiliating and severely interfered with his education.
Relying in part on the reasoning in the recent U.S. Supreme Court decision involving the rights of transgender workers, Bostock v. Clayton Cty., the court concluded that transgender students should be permitted to use the restrooms that correspond to their gender identity. The court wrote that, with its decision, it joined a growing consensus of courts concluding that the Constitution protects transgender students “from school bathroom policies that prohibit them from affirming their gender.”
The Supreme Court now has allowed circuit court decisions to stand in three cases involving transgender students. Although declining to consider the case does not create national precedent, it does allow these three cases to stand as precedent within their circuits and as persuasive authority to other federal courts. As the Legal Ledger reported in August 2019, the 6th Circuit Court of Appeals, which has jurisdiction over Ohio, has found that public interest weighed strongly in favor of allowing a transgender student to use the restroom that corresponded with her gender identity (Dodds v. United States Dept. of Edn.).
If a transgender student in your district requests accommodations, OSBA encourages you to work with the student and your district’s board counsel. For general information about this issue, please contact OSBA’s division of legal services at (855) OSBA-LAW or (855) 672-2529.