On Monday, the Supreme Court dismissed a Virginia school’s attempt to challenge a ruling in which a transgender student alleged discrimination in the school’s bathroom policy.
In 2015, transgender student Gavin Grimm sued Gloucester High School, alleging that the school’s refusal to grant access to the male bathroom constituted discrimination in violation of Title IX. A Virginia appeals court ruled in the student’s favor, opining that Gloucester High School subjected Grimm to “a special kind of discrimination…. that he will no doubt carry with him for life” and lambasted “the fantastical fears and unfounded prejudices of his adult community.”
After the school board appealed the case to the Supreme Court, the Court dismissed the school board’s challenge with an unsigned order, even as Justices Thomas and Alito said they would have heard the challenge from the school board.
The Supreme Court’s decision comes in the wake of Bostock v. Clayton County, a 2020 case in which the Court ruled that firing employees based on sexual orientation was a Title VII violation. While Bostock was a Title VII decision, the Virginia appeals court that decided Grimm’s case applied it to the Title IX complaint: “After the Supreme Court’s recent decision [Bostock] … we have little difficulty holding that a bathroom policy … discriminated against him [Grimm] on the basis of sex.”
On June 22, six days before the Supreme Court’s ruling, the Department of Education released a notice codifying the extension of Title IX protections to gay and transgender students. According to the department, this extension came “in light of the Supreme Court’s decision in Bostock v. Clayton County,” explaining Bostock’s role as a defining precedent for similar allegations going forward.
In absence of any new precedent from the courts, schools concerned about LGBTQ issues are likely to continue losing discrimination suits on the basis of Bostock, even as the Equality Act looms on the horizon to federalize these issues.
At the moment, one former Virginia high school student is celebrating a victory six years in the making. Grimm told Politico, “I am glad that my years-long fight to have my school see me for who I am is over…. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized.”
But, as Grimm celebrates, some academics see the Court’s action as merely prolonging the issue. University of Texas law professor Steve Vladeck noted that its current refusal to set additional precedent on the transgender bathroom issue simply “kicks that question down the road.” The Court’s decision to dismiss Gloucester’s challenge is thus a refusal to create new precedent in a six-year-long legal debate about schools’ policies concerning LGBTQ students.
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