We have been speculating for quite some time now about what the U.S. Supreme Court will do with Title IX after its decision last term in Bostock v. Clayton County, Georgia. The landmark Bostock decision held that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation and transgender status in the workplace. Although the Justices discussed Title IX in the oral argument and decision in Bostock, because of differences between employment laws and Title IX, many questions remained unanswered. A school district’s recent request that the Supreme Court hear a case involving transgender student access to bathroom facilities offers the high court a chance to answer many of the lingering, important questions. The case is one of the longest-running LGBTQ school cases in the country; the Supreme Court has even heard it once before. Here’s what you need to know now about the case and the request to the Supreme Court.
The case involves Gavin Grimm. When Grimm was born, he was identified as a female, and he began high school at Gloucester High School as a female in 2013. Beginning at the end of his freshman year, he began to outwardly identify as male, and by sophomore year he was expressing his male identity in all aspects of his life. He asked his high school if he could use the boys bathroom. In response, the Board of Education for the school district adopted a policy allowing a student to use only restrooms matching their “biological gender” or unisex, single-stall bathrooms for students with “gender identity issues.”
The case has been in litigation since, with an initial decision by an appellate court finding that Title IX required schools to treat students consistent with their gender identity. The appellate court relied on a Department of Education Office for Civil Rights (OCR) guidance document from the Obama era in reaching that decision. The school appealed to the Supreme Court, and it accepted the case. But before it could issue a decision, the Trump administration withdrew the guidance document on which the original appellate court had relied. The Supreme Court, therefore, sent the case back down to the lower courts to determine if the change in OCR policy changed the decision in the case. It did not.
In August 2020, the appellate court once again found that the school violated Title IX by not allowing Grimm to use the restroom matching his gender identity. The school has once again asked the Supreme Court to review. Of course, the makeup of the court has changed since it initially decided to hear Grimm’s case. But the fact that the Court took the case previously suggests there is a good chance it will do so again here.
School leaders and advocates will likely welcome guidance from the Supreme Court on this issue. Unlike OCR guidance, which swings one way, then back again, and then back again, precedent from the Supreme Court is more durable. Regardless of the decision, guidance on how to handle these sensitive issues will be helpful. Until then, continue to work closely with your legal counsel when addressing requests regarding school facilities and sports teams. And of course, make sure to follow us here at titleIXinsights.com for more updates when they are available.