After years of battling for his high school to recognize and respect his gender identity, transgender activist Gavin Grimm’s hard-fought lawsuit is in danger of being dismissed from court.
In 2015, Grimm sued the Gloucester County, Virginia, school board for discrimination after it instituted a policy stating students must use bathrooms corresponding with their biological sex rather than their gender identity. He challenged the policy as a violation of Title IX of the Education Amendments of 1972, the federal law that prohibits sex discrimination in education. A district court judge initially dismissed Grimm’s case. But the Fourth Circuit Court of Appeals reversed the lower court’s decision and ruled he should be allowed to proceed on his claim. Grimm’s case took a brief detour to the U.S. Supreme Court after the school board appealed that ruling, but the high court kicked the case back to the Fourth Circuit after the Trump administration withdrew federal agency guidance that Title IX includes policies that discriminate on the basis of gender identity.
But Gavin Grimm is no longer a student. He graduated on June 10, according to court documents filed by the school board. And that means, the school board contends, that Grimm no longer has any continuing interest in the case. In other words, the school board thinks Grimm’s case is “moot” and, in May this year, asked the Fourth Circuit Court of Appeals to throw it out.
Mootness is a limitation on a federal court’s jurisdiction, or power, to hear a case. Article III of the U.S. Constitution grants federal courts the authority to resolve legal questions only if it is necessary to do so in the course of deciding an actual “case” or “controversy.”
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In Grimm’s case, the controversy is over the school board’s discriminatory bathroom policy, which barred him from using the correct bathroom during his final year of high school. The school board argues that, because he graduated, Grimm no longer has any continued interest in the case, unless he plans to return to the school after graduation.
That’s exactly what Grimm says he plans to do, however, according to the court order the Fourth Circuit issued on Wednesday. Grimm contends that he plans to attend future alumni and community events at the school, and has a continuing interest in whether or not the school board intends to enforce its bathroom policy against him.
“Gavin’s future attendance at alumni and school-community events ensures that the ‘parties have a concrete interest, however small, in the outcome of’ the motion for preliminary injunction that prevents the appeal from becoming moot,” said his lawyers in documents filed with the court.
The school board says that the policy only applies to students, but that’s of little comfort to Grimm, who called the school board’s contention that the policy doesn’t extend to alumni a “noncommittal statement.”
Because there were no facts before the court—only contradictory allegations from Grimm and the school board regarding whether Grimm had any interest in the case—the Fourth Circuit remanded the case Wednesday back to the district court to weigh in on the matter. The appeals court said this would require the lower court to develop a factual record, such as testimony from either party.
Grimm tried to expedite his lawsuit. His attorneys asked the appeals court to hear the case in May of this year. But the school board said that wouldn’t give it enough time to prepare and asked for a hearing date in September, after Grimm’s graduation.
Then once Grimm graduated, the school board asked the appeals court to dismiss the case as moot.
This is a common theme in Title IX cases. Because Title IX litigation is complicated and lengthy, a lot of cases get dismissed on mootness grounds. Students graduate and the legal issues for their specific cases, in a sense, thus resolve themselves.
But should the court dismiss Grimm’s case, the issue of whether or not schools must recognize and respect the gender identity of their students is still very much alive. The Trump administration refuses to defend transgender students—including any of Grimm’s former classmates, for example—in lawsuits against their schools. With the question open of whether sex discrimination civil rights statutes protect against gender-identity discrimination like the kind Grimm experienced (spoiler: they do), for the moment, it’s up to the federal courts and attorney-advocates to protect these kids. Because it’s sure clear the U.S. Department of Education has no intention to.