February 19, 2021 at 4:47 pm EST | by Chris Johnson
Va. school seeks Supreme Court review in continued fight against Gavin Grimm
SMYAL Fall Brunch, gay news, Washington Blade
Gavin Grimm speaks at the SMYAL 2017 Fall Brunch in D.C. on Nov. 6, 2017. A federal judge in Norfolk, Va., has declined a motion to dismiss his lawsuit against the Gloucester County School Board. (Washington Blade photo by Tom Hausman)

Gavin Grimm’s fight to get his Virginia high school to allow him to use the restroom consistent with his gender identity — even though he graduated four years ago — isn’t over: Gloucester County School Board on Friday filed a petition asking the U.S. Supreme Court to review the case.

The 37-page petition asserts the decision from the U.S. Fourth Circuit Court of Appeals, which ruled in favor of Grimm in August, was incorrect in determining the Fourteenth Amendment and Title IX of the Education Amendments of 1972 require the school to grant him access to the boys’ bathroom.

“The overriding issue in this case is whether federal law — either Title IX or the Equal Protection Clause — mandates only one answer to the difficult question of how a school should respond to transgender students seeking to be treated consistent with their gender identities, while accommodating the compelling bodily privacy interests of their cisgender classmates,” the petition says. “Because both laws permit school boards to reach different answers to that question, the decision below was wrong.”

Although Grimm graduated from high school in 2017, the courts have kept his case alive on the basis he could return as a alum, such as a return trip for a football game, and may need to use the restroom facilities, and because the school refused to update his transcripts consistent with his gender identity.

Grimm said in a statement he’s disappointed the school would continue to challenge his access to the restroom.

“I graduated four years ago — it is upsetting and disappointing that Gloucester County continues to deny who I am,” Grimm said. “Trans students in Gloucester County schools today should have the respect and dignity that I was denied. Whether it’s using the right restroom or having transcripts that reflect who we are, we all deserve to go to a school that’s free of harassment and discrimination.”

The question presented in the petition: Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?

It remains to be seen whether the court, which has a 6-3 conservative majority in the aftermath of the Trump administration, will agree to take up the case, nor where it will come down in a potential ruling. It takes a vote of four justices to grant a writ of certiorari, or agree to take up a case.

If the Supreme Court accepts the case, it wouldn’t be the first time. In an earlier stage of the lawsuit, when Grimm was still in high school, Gloucester County School Board filed a petition and the Supreme Court agreed to hear it in 2016.

But the court took up review of the case to answer questions about Auer deference and Obama-era guidance instructing school to allow transgender kids to use the restroom consistent with their gender identity. Once the Trump administration rescinded that guidance in 2017, the Supreme Court scrapped consideration because the underlying issue became moot.

Representing the Gloucester County School Board is the Richmond, Va.-based law firm Harman, Claytor, Corrigan & Wellman and the D.C.-based Schaerr | Jaffe LLP. Schaerr didn’t immediately respond to the Washington Blade’s request to comment Friday on why the law firm thinks the Supreme Court will agree to take up the case now after having scrapped it four years ago.

The petition, however, says the “case remains an excellent vehicle” for the Supreme Court to adjudicate whether Title IX and the Fourteenth Amendnebt require schools to allow transgender kids access to the restrooms consistent with their gender identity, citing a lack of jurisdictional issues and an opportunity to the review the case without having to address Auer deference and the Obama-era guidance.

“All concerned — including the thousands of schools and school boards that must wrestle with the questions presented here—will benefit from a timely and definitive resolution of those questions,” the petition says.

Josh Block, senior staff attorney for the ACLU LGBT & HIV Project, however, said continued adjudication of the case is unnecessary.

“It is disappointing that after six years of litigation, the Gloucester County School Board is still digging in its heels,” Block said. “Federal law is clear: Transgender students are protected from discrimination. Gloucester County schools are no exception.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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