By Ryan M. Leach
The following is a tale of unintended consequences.
Before starting his sophomore year, Virginia high school student Gavin Grimm informed the Gloucester County Public Schools that he was transgender. He told them that he had legally changed his name to Gavin and that he should be referred to with the male pronoun. In the fall, the principal allowed Gavin to use the boys’ restroom, which he did without incident for seven weeks. A problem arose when parents and other outsiders took issue with this and pressured the school board to enact a new policy requiring students to use the restroom of the gender they were assigned at birth. Transgender students would have to be segregated to unisex restrooms—usually the school’s clinic restroom. Gavin sued, citing discrimination in violation of Title IX, a federal statute that protects students from discrimination on the basis of sex and gender expression. In April, it was announced that Gavin won.
It took a while for Gavin to obtain this ruling. After being denied by the state’s district courts, it was finally the Fourth Circuit Court of the United States that held that it was indeed discriminatory for schools to segregate transgender students when schools elect to use sex-segregated restrooms. This decision is important because the court affirmed the interpretation used by the Department of Education’s Office of Civil Rights in enforcing Title IX. But this case does more than allow Gavin to once again resume using the restroom of the gender he identifies with. The Fourth Circuit ruling could undo—and possibly prevent—current attempts by some states to create laws that would mandate the same thing.
When school districts or states violate Title IX in the way that this Virginia school district did, it endangers their ability to collect federal dollars. In the past, it was Title IX that was cited when women dared to participate in sports traditionally dominated by men. If an institution, or school district, loses access to these funds, that can equate to millions of dollars. Or in the case of a statewide law, the loss can be in the billions. Which is where this story takes a few interesting turns—the first of which is to North Carolina.
In March, the state of North Carolina passed the broad and infamous House Bill 2 (HB2)—one of the most discriminatory laws against LGBT people in the entire country. HB2, among other things, requires people to use the restroom corresponding to the gender that they were assigned at birth. This includes students in the North Carolina public school system. So how does Gavin Grimm’s case relate to North Carolina?
The Fourth Circuit, which ruled on Grimm’s case, is a part of the federal system of courts ranked just below the Supreme Court of the United States. Since the Supreme Court doesn’t have the capacity to hear every single case, the federal court system is broken up into nine regional circuits in order to more effectively and efficiently answer legal questions that come up. Gavin’s first lawsuit was in a Virginia district court, which only affects the laws of that state. When Gavin lost and appealed his case, it was moved up to the Fourth Circuit. The Fourth Circuit’s ruling impacts Virginia as well as a small handful of neighboring states, one of which is North Carolina. Gavin Grimm’s Fourth Circuit opinion out of Virginia has legal authority, or precedence, in North Carolina.
The plot thickens.
The Grimm decision could effectively require the U.S. Department of Education to withdraw its $4.5 billion dollars from North Carolina because, according to precedential case law, their HB2 clearly discriminates against transgender students in a way that the court says it can’t. Under normal circumstances, Grimm’s decision would most certainly be appealed to the Supreme Court of the United States. This could drag out the case for the next three years, and North Carolina could effectively avoid any fallout from the Fourth Circuit decision. But you see, these aren’t normal circumstances, and the wrinkle in that scenario involves the death of Supreme Court Justice Antonin Scalia. (Stay with me here—we are going on a detour.)
Scalia died unexpectedly in early 2016. He was by far the most conservative justice on the Supreme Court. His death left a vacancy and an even number of justices. When the Supreme Court has only eight justices and they tie on an issue—four against and four in favor—there is no precedential ruling set, and the circuit-court ruling stands. So if North Carolina or the school district appealed the Fourth Circuit ruling the likely outcome would be that the Fourth Circuit ruling would stand or —even worse for North Carolina—the rights of transgender people would be recognized across the country when the Supreme Court likely ruled five to three in favor of Grimm.
So what is a North Carolina governor supposed to do when faced with tremendous public backlash, the loss of millions of dollars and jobs, and a tough re-election where he is now losing in the polls? Well, that question has yet to be answered. North Carolina Governor Pat McCrory has indicated that he will respect the will of the Fourth Circuit Court. What that means in regards to HB2, however, is anyone’s guess. On April 25, a bill asking for the full repeal of HB2 was filed in the North Carolina legislature. Its chances of passage are unknown, but not good.
I wonder if those parents and the school board in Virginia now wish they had just let Gavin Grimm pee in peace? We may never know the answer.
Ryan Leach is a community leader and activist who is dedicated to the social and political advancement of the LGBT community, as well as all communities fighting for equality. He is also a board member for Equality Texas,and a former board member for the Houston GLBT Political Caucus. You can connect with his work by emailing him at [email protected].