Noting that the Virginia transgender youth, Gavin Grimm, has graduated from high school, a federal appeals court on Wednesday sent his case back to a trial judge to decide if the controversy has come to an end because of the changed situation. The school board involved in the case says the dispute is over, but Gavin insists it is not.
The U.S. Court of Appeals for the Fourth Circuit said in a new order that it does not have, in the record now before it, the facts that would bear on the question of whether there remains a live controversy between the youth and the Gloucester County School Board. Returning the case to a District Court judge in Norfolk, the Circuit Courrt cancelled a hearing it had scheduled on the case on September 12.
The appeals court’s action at least prolongs– and it might end — the youth’s two-year legal effort to gain equal treatment as a transgender student on access to bathroom facilities at his school. Assigned female gender at birth, Gavin has grown to accept himself as male, but the school board has a policy that denied him access to the boys’ restroom at Gloucester High School.
The case has been one of the highest profile disputes in the new civil rights revolution seeking equal treatment for transgender people, under both federal civil rights law and the Constitution. At one point, after Gavin won a right to use the boys’ restroom — under federal civil rights law’s Title IX — the Supreme Court agreed to hear the school board’s challenge to that outcome.
But, before the Justices could even hear the case, they decided to send it back to lower courts after the Trump Administration informed the Justices that it was no longer going to defend transgender claims under Title IX. After the case got back to the Fourth Circuit Court, new legal papers have been filed, and the case was scheduled for a September 12 hearing.
In those filings, the school board took the position that the case became moot (legally, no longer a controversy) in June when Gavin graduated from high school. Gavin countered that he plans to go back to school for alumni events, so he contended that there remains an active dispute over school board policy. In turn, the school board has said it is not clear that the policy on restroom access would apply to alumni attending school events.
Rather than try to resolve that question on its own, with none of the new facts before it, the Fourth Circuit Court found that its jurisdiction to rule is now in issue — no federal court can decide a case that has become moot — and the trial judge should take on the task of gathering the facts bearing on that question. The case has been handled in the District Court of Senior Judge Robert G. Doumar in Norfolk, VA. However, in June, the case was reassigned to one of his colleagues in Norfolk, District Judge Arenda L. Wright Allen.
One of the ironies of the Grimm case is that, although the change of position by the Trump Administration was the key factor that has kept the courts so far from making a final decision on Gavin’s case, the Administration has yet to seek to enter the case or to file any legal papers stating its position on Title IX and its application to gender identity cases.
Last month, however, the Justice Department in the new government did take a position — in a different federal appeals court — that another civil rights law (Title VII) does not protect workplace rights for gays, lesbians and transgender people. Titles VII and IX both outlaw discrimination based on sex, but neither law defines the term. Title VII outlaws sex discrimination in the workplace, and Title IX does so for those taking part in education programs that receive federal funds.
The Title VII issue will soon arrive at the Supreme Court in a planned appeal by a gay rights advocacy group, Lambda Legal, in a case involving a lesbian worker and a Georgia hospital.