Litigation challenging a Gloucester County School Board (“the Board”) policy defined Gavin Grimm’s high school experience. The Board’s policy “declared that access to the boys’ and girls’ restrooms would be limited to students of ‘the corresponding biological genders,’ and also declared that students who are unable to use such restrooms because of ‘gender identity issues’ would be relegated to ‘an alternative appropriate private facility.’” At the end of a winding procedural history, Grimm was victorious; the Fourth Circuit held the school board’s restrictive bathroom policy unconstitutional because the policy violated Equal Protection principles and Title IX of the Education Amendments of 1972. The Fourth Circuit articulated two important rules in Grimm. First, the Fourth Circuit held that transgender people constituted a quasi-suspect class. Therefore, policies classifying on the basis of transgender status must be substantially related to an important governmental interest in order to comply with the protections of the Equal Protection Clause of the Fourteenth Amendment. Second, the Fourth Circuit determined that the policy discriminated on the basis of sex because it punished Grimm for his gender-nonconformity and imposed a harmful social stigma on him.

While it has been over ten years since Grimm filed suit, the issue of bathroom access for transgender people is far from settled. The rights of transgender people are being challenged across the nation, and the states comprising the Fourth Circuit are no exception. Statutes and policies continue to limit the rights of transgender people seemingly on the basis of transgender status, and litigation has not given a national answer as to whether such acts violate the Constitution. Considering the political pressure on transgender rights, an evaluation of Grimm’s precedential value carries informative value for the parents of transgender students who look to the judiciary to vindicate their children’s rights. Historically, the judiciary was considered the protector of civil rights, but the judiciary may not provide the avenue of relief that it once did for transgender youth in the Fourth Circuit. This Note asks two questions. First, this Note asks to what extent the key holdings in Grimm v. Gloucester County School Board have been set aside or watered down by courts within the geographic bounds of the Fourth Circuit. Second, this Note asks to what extent the stability of Grimm’s treatment informs the litigation strategies for transgender students, who are often in desperate need of the vindication of their rights.

Before answering these questions, this Note traces the legal and political changes that have occurred since Grimm and evaluates whether public sentiment is aligned with these changes. Recent statutes, policies, and litigation indicate increasing hostility toward transgender individuals since 2020. For example, the Supreme Court delivered a major setback in United States v. Skrmetti and limited the scope of protections promised by the Equal Protection Clause of the Fourteenth Amendment. Additionally, the Supreme Court will soon decide the scope of Title IX of the Education Amendments of 1972 in relation to transgender athletics in the school setting. Some entities within the Fourth Circuit are already treating Grimm as precedent that is not worthy of deference, such as the South Carolina legislature. Despite these political and legislative developments, it is possible that transgender youth litigants can rightfully place their hope in the Fourth Circuit because Grimm is still good precedent and actively defended.

First, to discern how Grimm is treated by courts within the Fourth Circuit, this Note analyzes eighty-one cases that formally cite to Grimm at least once over the last five years. These cases reveal that transgender youth litigants are correct to view the Fourth Circuit as a protector of their rights because Grimm is defended as binding precedent in the school and medical contexts, and it retains informative value in the prison context. For instance, the Fourth Circuit has fiercely defended Grimm as binding precedent in the public-school context, despite developments at the Supreme Court level. In B.P.J. v. West Virginia, the Supreme Court could spare Grimm by deciding the case on narrower grounds. And, until the axe falls in B.P.J. and the damage to transgender rights can be assessed, bathroom access and other gender-affirming measures available in the public-school context are strongly protected in the Fourth Circuit. In the healthcare context, Grimm supports litigation concerning access to gender-affirming care, despite the blows dealt to the transgender community following the Supreme Court’s decision in United States. v. Skrmetti. Of note, in the aftermath of Skrmetti, the Supreme Court vacated a critical gender-affirming precedent in the Fourth Circuit. Additionally, while the fight continues in the healthcare context, Grimm bolsters the ability of transgender plaintiffs to challenge the conditions of their confinement in the prison setting. Despite the incorporation of Grimm’s principles, the claims of transgender litigants in the prison setting often fail for other reasons. The conclusion that transgender youth litigants are correct to view the federal judiciary as a protector of their constitutional and statutory rights emerges from an analysis of cases in these three contexts. The continued application of Grimm as binding in the Fourth Circuit protects transgender rights.

Keep Reading The Vulnerability of Grimm and the Fourth Circuit as Protector of Transgender Rights