Gavin Grimm is a man who was denied the right to use the men’s restrooms in a public school in Virginia because the school classified him as a woman based on his birth designation. U.S. District Court Judge Judge Arenda l. Wright Allen held that this constituted discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681-1688, the federal law that prohibits sex discrimination in any educational institution receiving federal funds. Grimm v. Gloucester County School Board, 2018 U.S. Dist. LEXIS 88638 (D.Va. 2018). The court applied the gender stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), and agreed with the First, Sixth, Ninth, and Eleventh Circuits that discrimination based on gender identity constitutes “sex” discrimination. It concluded that “"discrimination on the basis of transgender status constitutes gender stereotyping because 'by definition, transgender persons do not conform to gender stereotypes,’” quoting M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 714 (D. Md. 2018).
The court cited these Circuit Court cases to support its conclusion that gender identity discrimination constitutes sex discrimination under the gender stereotyping theory:
- Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, 261 n.4 (1st Cir. 1999)
- Christiansen v. Omnicom Grp., Inc. , 852 F.3d 195, 200-01 (2d Cir. 2017)
- Prowel v. Wise Bus. Forms., Inc. , 579 F.3d 285, 290 (3d Cir. 2009)
- Hively v. Ivy Tech Cmty. Coll. , 854 F.3d 339, 351-52 (7th Cir. 2017)
- Nichols v. Azteca Rest. Enters., Inc. , 256 F.3d 864, 874-75 (9th Cir. 2001)
- Whitaker v. Kenosha Unified School Dist. No. 1 Board of Education, 858 F.3d 1034, 1049-51 (7th Cir. 2017)
- Dodds v. United States Dep't of Educ., 845 F.3d 217, 221 (6th Cir. 2016)
The court also cited District Court cases:
- A.H. by Handling v. Minersville Area Sch. Dist., No. 3:17cv391, 2017 WL 5632662, at * 1, *3—*7 (M.D. Pa. Nov. 22, 2017)
- Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288, 295 (W.D. Pa. 2017)
- Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep't of Educ., 208 F. Supp. 3d 850, 865, 869, 871 (S.D. Ohio 2016)
- M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 711 (D. Md. 2018).
The court also found a violation of the Equal Protection Clause under the intermediate scrutiny for sex discrimination on the ground that the school’s policy was not substantially related to its goal of promoting the privacy rights of students. The court found that not a single student had complained about Grimm’s use of the men’s restrooms even though he had been using them for months. More importantly, Grimm’s use of the restrooms posed “provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions." Finally, if privacy is an issue, a non-discriminatory way to solve it is to install partitions between urinals and privacy strips on stall doors.