On Saturday, eight days from now, Gavin Grimm will join other seniors at a Virginia high school, on the edge of the town of Gloucester Courthouse, for their graduation ceremony. On Friday, lawyers for him and for the local school board filed new legal briefs in a federal courthouse in Richmond, continuing their running dispute over whether the end of his high school career will also mean the end of his attempt to gain legal equality as a transgender person.
The legal papers just submitted to the U.S. Court of Appeals for the Fourth Circuit are the last scheduled to be filed in the youth’s lawsuit. A hearing on the case is tentatively scheduled for mid-September.
The question of whether the case will end is important on a number of levels, even if it is basically a difficult and complex legal puzzle.
On one level, this particular case has gained an unusual prominence in the early stages of a new civil rights revolution, over transgender rights, with Gavin Grimm himself gaining a symbolic status not unlike that of other high-profile figures in civil rights history.
On another level, it is another and vivid example of how an important lawsuit may simply run out of time, given that it often can takes years to progress through the courts, and then get overrun by changing events. Courts have some ways to get around the problem, but they are not always workable, even when lawyers try to shape their case so it might overcome the obstacles of time and change.
At\ the core of the situation facing both sides in Grimm v. Gloucester County School Board is a basic reality about the ability of federal courts in America to decide lawsuits. The Constitution itself limits those courts to deciding only a “live” case or controversy – that is, a real-world legal grievance rather than an abstract or theoretical legal experiment.
And that requirement is in operation at every stage of a federal court case: it has to keep its genuine character from the day it is filed until the day it is finally decided. In other words, the person suing has to have a genuine legal complaint for the case to start and to continue. That is the mandate of Article III of the Constitution.
That is exactly the requirement that confronted the lawyers for Gavin Grimm and his mother, when they went to court two years ago this month, claiming that as a transgender boy, he had been denied access to the boys’ bathroom at his school.
Their lawsuit claimed that his rights had been violated under a federal civil rights law, Title IX, which guarantees equality based on sex in education programs that receive federal funds. The case also claimed that he had been denied legal equality guaranteed by the Constitution’s Fourth Amendment.
At this point, two years later, Gavin and his mother are still trying to win on both claims, in their third trip to the U.S. Court of Appeals for the Fourth Circuit, after the case had made a trip to the Supreme Court, without a result.
The youth’s lawyers tried to persuade the Fourth Circuit Court to rule in his case before his scheduled graduation this month, but that plea was denied. (That denial, incidentally, is being used as an argument by the school board against continuing the case.)
In a round of briefing in early May, and in the new round just completed on Friday, both sides discussed their views on whether or not either Title IX or the Fourteenth Amendment were violated in his situation. That, of course, is the heart of the actual controversy between them.
But before the Fourth Circuit Court could reach that core question, it has to decide that Gavin’s legal claim will survive his graduation on June 10.
His lawyers tried to plan for that potential difficulty when they asked that the school board pay a nominal damage award — $1—to Gavin if he ultimately wins on his claim of a violation of his rights. Quite often, in a lawsuit in federal court, a claim for a money awards will keep the case going even after the violation that led to that award has ceased.
In the latest round of briefs, as they discuss the continuation of his case beyond graduation, his lawyers made a number of points. They pointed out that Gavin, as an alumnus of the high school, will be going back for school events, including sports events, and the school board policy against his use of the bathrooms for males will still be in effect.
They also claimed that his Title IX claim remains a live one, because the protection of that law applies to any federally funded school activity, and is not restricted to the protection of current students. School employees, for example, are protected, they argued, so alumni should be, too.
Further, they contended that his constitutional claim remains a viable one, because it has never been ruled upon yet, because the case up to now has focused entirely on the Title IX issue.
The school board’s attorneys aimed their argument on this point at Gavin’s imminent graduation. Once he is no longer a student, their brief said, Title IX ceases to protect him, just as it would not protect a member of the general public who showed up for an event on school property. Title IX is an educational benefit only, the brief stressed.
Those attorneys also argued that Gavin’s legal team has not brought in any evidence of what might happen in the future, after he has graduated. And, they added, there is also no proof of what the school board would do in the “some day” situations that Gavin’s lawyers imagine might occur.
Further, the board’s lawyers argued that his claim for only $1 in damages cannot on its own support the court’s authority to decide his case, and that the Title IX claim itself is no longer viable because the trial judge did not even issue a final decision on that claim.
The two sides do not even agree on which side has the legal duty to prove the point about whether the case will remain viable after next Saturday. It is the school board’s duty, the youth’s attorneys said, to show that the case has lost its real meaning, but the school board says that is Gavin’s duty.
At this point, it appears that this dispute will become a question for the judges to decide when the Fourth Circuit Court holds a hearing some time during a sitting for arguments in the middle of September. If they agree with the school board, Gavin’s remaining option would be to attempt again to get the case before the Supreme Court.
Even if the case does not result in setting an important new precedent on transgender rights, it may provide significant guidance on how Title IX and the Constitution are affected in the school setting, where time sometimes passes all too quickly while the wheels of justice grind slowly on.
