The Legal Fight for Trans Rights Enters a New Phase for Gavin Grimm

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Analysis Law and Policy

The Legal Fight for Trans Rights Enters a New Phase for Gavin Grimm

Jessica Mason Pieklo

Lawyers for Gavin Grimm changed the nature of his legal fight on Friday, but it's far from over.

Gloucester County, Virginia, former high school student Gavin Grimm never thought he would become a national symbol for the transgender civil rights movement in this country, but he did.

On Friday, however, Grimm’s case changed, as his lawyers at the American Civil Liberties Union (ACLU) dropped his request for an injunction blocking enforcement of the policy as it applies to him. He hasn’t, however, stopped challenging the policy at the center of his lawsuit.

Grimm’s request to his school administrators in 2014 to use a restroom that aligns with his gender identity, and the school district’s denial of that request, catapulted him all the way to the U.S. Supreme Court. And for a moment, the Court considered taking it. But after the Trump administration’s withdrawal of an Obama-era Title IX guidance clarifying protections for transgender students in public schools, the Court instead sent Grimm’s case back down to lower courts to reconsider their rulings—which had all, with one exception, been in Grimm’s favor. That Title IX guidance, while involved in those decisions, did not control their outcome. In other words, the Obama administration supported Grimm and his position, but it was Title IX of the Education Amendments Act of 1972 that ultimately protected the rights of Grimm and other trans kids, and it will continue to do so.

The Court also stayed the lower court decisions that had ruled in Grimm’s favor, so the school board’s policy prohibiting transgender students from using the common student restrooms could proceed while the case continued.

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For the past three years, the ACLU has represented Grimm in his lawsuit challenging the policy, which forces transgender children to use separate bathroom facilities. This, in turn, isolates them from the rest of the student body and increases the likelihood they face abuse and harassment at school. Grimm had sought an immediate preliminary injunction ordering the school board to stop enforcing its policy against him while his case proceeded. That is the request the ACLU withdrew last week.

That means that the Supreme Court’s stay, and thus the policy, remains in place while Grimm’s case winds its way through the lower courts. To say the least, this is not just disappointing for civil rights advocates. It is heartbreaking for a teenager who spent his high school years just trying to live as he is and for the trans teens at his school who also would have benefited from Grimm’s fight in the meantime.

But at the same time Friday, the ACLU filed papers to continue to fight the Gloucester County School Board policy as flat-out discrimination against trans students. This allows attorneys to develop the record of prejudice these policies are grounded in and which they advance. Previously, because the case advanced on a motion to dismiss, there was no trial and no record developed. This new move means that school officials will likely have to testify as to why they changed their bathroom policy to specifically target Grimm, and on what basis they decided to do so. It means medical professionals will be able to testify as to the harms these laws cause students. And while Gavin did not get the chance to see his victory while a student, it means he still remains very much in the fight to take down these hurtful policies.

This is how these kinds of laws are brought down. Like the fight against Proposition 8 in California and the Supreme Court decision that moved LGBTQ rights and protections in the right direction by striking down sex-same marriage bans—albeit slowly—a general trial over the Gloucester Country anti-trans policy can be the way to strike another blow to the anti-civil rights push-back so virulent in this country right now.

“We believe that today’s filing represents the most efficient path forward to ensuring that justice is served for Gavin,” said Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Projects, in a statement following the filing. “Gavin graduated from high school before his simple request to his school board to treat him like every other boy could be validated, but this case is far from over.”

Of course, it is an understatement to say there is a lot on the line when it comes to Grimm’s case and the several others making their way through federal courts. For many trans people, it is their lives at risk in this fight, which cannot be said enough. And we know that the Supreme Court will hear arguments in at least one case brought by conservatives already trying to push back against the important, but limited, protections brought by Obergefell v. Hodges, the 2015 Supreme Court decision that struck as unconstitutional statewide bans on same-sex marriage. So to be clear, the fight for LGBTQ people is still on.

“Our fight to have our rights and dignity respected as trans people didn’t end just because I graduated from high school,” said Grimm in a statement following the filings. “I am in this for the long haul, and I remain hopeful that my case will help make sure that other transgender students are able to attend school safely and without discrimination,” said Grimm.

So are we, Gavin.