Hello fellow law enthusiasts!

It has been, lo, these many months since you’ve heard from the best team in legal journalism this side of the Mississippi. (What side of the Mississippi is that? Whatever side you’re on, of course.)

But we’re back this week to continue your legal education: We are going to talk about motions to dismiss and motions for summary judgment, specifically how they relate to Gavin Grimm’s case against the Gloucester County School Board and transgender bathroom discrimination.

So let’s get to it!

“Motions to dismiss” ask the court to throw out a case at its earliest stages, usually before any of the actual litigating takes place. There are a variety of reasons that a court may dismiss a case this early on. The plaintiff may have filed the lawsuit in the wrong court; the court may not have jurisdiction over the plaintiff’s claims; or the plaintiff may not have served the complaint properly.

The reason we are going to focus on is “failure to state a claim.” States have their own rules regarding motions to dismiss, but in federal court, this is called a Rule 12(b)(6) motion after Federal Rule of Civil Procedure 12(b)(6).

In deciding whether to grant a motion to dismiss for not clearly stating a claim, a court generally looks only at what is contained in the “four corners” of the complaint and its attachments—such as copies of contracts in a contract case. The idea is the court only looks at that initial pleading and determines whether or not the case can move forward. There’s no additional evidence apart from those initial claims.

Essentially, a 12(b)(6) motion to dismiss argues that even if all the facts alleged in the complaint are true, they don’t form a claim that the court has the power to do anything about. A 12(b)(6) motion does not resolve factual issues. The court doesn’t come to a conclusion on what happened or when. It also does not examine the merits of the plaintiff’s claim, or the defendant’s arguments against it. It simply asks whether a legal claim exists at all.

What does this look like in real life? For example, if your neighbor files a lawsuit against you in federal court alleging that you refuse to hug him when you see him, you could easily get that lawsuit dismissed by filing a 12(b)(6) motion arguing that there’s no law requiring you to hug your neighbor, and that the court has no power to grant your neighbor a remedy based on your refusal to hug him. The court can’t give your neighbor money damages because you didn’t hug him, and the court can’t issue an injunction forcing you to hug him.

In lawsuits containing multiple claims, a defendant can file a motion to dismiss specific ones, and try and knock one of them out of the case. If the court dismisses those, the lawsuit will proceed on the remaining claims. So, for example, let’s say your neighbor alleges that not only won’t you hug him, but that you won’t return his car. The court would dismiss your neighbor’s “failure to hug” claim. But since the court does have the power to remedy the claim about the car—based on existing law, the court could issue an injunction requiring you to return the car, or could order you to compensate your neighbor for the loss of it—the court will permit the lawsuit to proceed on the car claim.

When deciding whether to dismiss the case, the court must accept the allegations of the complaint as true. Let’s say in a surprise twist, your neighbor doesn’t have a car. For a 12(b)(6) motion, that doesn’t matter. Your neighbor says he has a car, and your neighbor says you took it and won’t return it. The court must accept those statements as true.

After your motion to dismiss the car claim is denied, you begin the discovery process. During discovery, you take your neighbor’s deposition, and he admits that he doesn’t have a car and never had a car.

Your next move is to file a motion for summary judgment, sometimes called an MSJ or, in federal court, a Rule 56 motion (after Federal Rule of Civil Procedure 56).

A motion for summary judgment asks the court to decide the case or specific claims in the case in the moving party’s favor. The moving party is simply the party that files a motion asking the court to do something. The main difference between a motion to dismiss and a motion for summary judgment is that the court actually gets to evaluate the meat of the claims on a motion for summary judgment.

The legal standard in most jurisdictions requires the moving party to demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” In other words, both parties agree on a set of facts—these are called undisputed facts—and that the undisputed facts entitle the moving party to win.

In your motion, you argue that you are entitled to judgment as a matter of law because your neighbor never owned a car. You provide his deposition testimony where he admitted he doesn’t and didn’t own a car. If your neighbor doesn’t file a response the court would likely rule in your favor: The court can’t order you to return a nonexistent car or pay damages for failure to return a nonexistent car.

Once a motion for summary judgment is filed, however, the opposing party is allowed to file a response in which they need only show that a genuine issue of fact exists.

Perhaps your neighbor responds to your motion for summary judgment that while he doesn’t own a car, his girlfriend Jane owned a car, and when she died, she left the car to him. Since it is tied up in probate court, he doesn’t technically have ownership of the car yet, but he will soon, and the point is you still have it. Your neighbor provides deposition testimony in which you admit borrowing Jane’s car and not returning it.

Seriously. These are the kinds of cases courts really hear.

Once an opposition to a motion for summary judgment is filed, in turn, the moving party is entitled to file a “reply” to the opposition. In your reply, you argue that before Jane died, she had promised you that you could keep the car.

Well that—who owns the car, and whether Jane bequeathed the car to you or your neighbor—is a disputed fact. In that case, the court will deny the motion for summary judgment, and the case will proceed to the typical “courtroom” scenario most people probably associate with lawsuits.

A motion for summary judgment can be filed at any time once the case has moved out of the motion to dismiss phase. In other words, the moving party does not have to wait until discovery is complete. Practically, however, if the opposing party requires discovery in order to oppose the motion for summary judgment, a court will usually postpone making a decision on that motion in order to allow them to gather the necessary facts.

So, for example, if you file a motion for summary judgment immediately after deposing your neighbor about the car, the court might postpone a decision if your neighbor opposes the motion and says that he needs time to conduct discovery. He wants to take your deposition and force you to admit that you have Jane’s car. He also wants to depose Jane’s friends and family, all of whom will testify that she intended to leave the car to him and not to you.

Your neighbor might also file a motion for a stay, which will pause the litigation between you and your neighbor so that Jane’s estate can make its way through probate court and a decision about who gets the car can be made.

So now that you understand the basics of 12(b)(6) motions and motions for summary judgment, let’s talk about Gavin Grimm’s case.

Gavin Grimm is the Virginia teenager who catapulted into the national spotlight when he sued the Gloucester County School Board, alleging its policy of mandating students use bathrooms that align with their biological sex rather than gender identity violated Title IX of the Education Amendments of 1972, which bans discrimination on the basis of sex. Grimm and his attorneys argue that as a transgender student, the school board’s policy discriminates against him because of his gender identity, and that gender identity is covered by Title IX. The school board disagreed and filed a motion to dismiss, arguing Title IX does not cover gender identity discrimination.

Initially, a federal district court held that Title IX did not prohibit schools from limiting access to facilities like bathrooms to biological sex rather than gender identity, so Grimm had no legal basis to challenge the policy. It tossed out the case. Grimm appealed, and the Fourth Circuit Court of Appeals ruled twice that the district court got it wrong. The appeals court based its decision in large part on an Obama administration’s guidance to federally funded schools that Title IX’s sex discrimination ban includes bans on discriminating on the basis of gender identity and he should be allowed to proceed with his case.

The school board appealed the Fourth Circuit’s ruling to the U.S. Supreme Court, which initially took the case, then changed its mind and kicked it back to the Fourth Circuit. That was after the Trump administration announced it didn’t care if transgender students faced significant discrimination in schools; it wasn’t going to enforce their Title IX rights. This was a direct change in policy of the Obama administration (shocking, right?), which scared the justices off from resolving the case immediately.

So where does that leave Grimm? His case is now back to the federal appeals court to answer the question of whether or not, within the four corners of his complaint, his case against the school district can proceed—with the key factor being whether he has a legal claim under Title IX for discrimination on the basis of his gender identity and whether the court can rule on his case at all. Then, the courts must determine whether he has enough evidence to prove his specific case.

In other words, despite making it all the way up to the Supreme Court once, Grimm’s case is still, in a lot of ways, in its earliest stages. Federal courts have slowly and almost uniformly come to the conclusion that Title IX covers claims of gender identity discrimination, as does Title VII of the Civil Rights Act, which prohibits sex discrimination in employment. So given the flurry of legislation and legal challenges around bathroom discrimination bills, the broad question of whether laws banning sex discrimination also ban gender identity discrimination is one the Roberts Court ultimately will step in to answer. And when it does, the preliminary question of whether students like Grimm have any legal remedy for discrimination in school at all would finally be before the Court.