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Supreme Court Leaves Transgender Bathroom Issue Unresolved

Gavin Grimm is a transgender boy living in Virginia.  Grimm attends school in the Gloucester County School District, which adopted a new policy requiring students to use the bathroom of their birth gender.  Previously, Grimm had been given permission to use the boys restroom and did so for almost 2 months without any incident.   After complaints from parents, the new policy was put into place. Grimm fought this new policy requesting the right to continue using the boys' restroom.

Grimm argued the bathroom policy was  unconstitutional under the 14th Amendment and violated Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination by schools. A motion for preliminary injunction was initially filed in hopes the issue could be resolved before the 2015-16 school year.  However, the Eastern District of Virginia denied the injunction and dismissed the claim under Title IX. Grimm appealed before the U.S. Court of Appeals for the Fourth Circuit and the lower court's decision was overturned in August 2016.  The Fourth Circuit ordered the Eastern District of Virginia to defer to the Department of Education guidance from 2015 interpreting Title IX as protecting transgender rights.  The Gloucester County School Board then petitioned for Writ of Certiorari to the Supreme Court of the United States.

The Supreme Court originally agreed to hear the case in October 2016.  Oral arguments were actually set to begin this month. However, the U.S. Supreme Court announced on March 6, 2017 that it would not hear the case and vacated the Virginia federal court order enjoining the Gloucester County School Board's rule and remanded the case back to the Fourth Circuit. This decision comes two weeks after the Trump administration rescinded the student bathroom access guidance previously issued by the Obama administration.

Although not an employment case, employers and their counsel have been tracking the case closely, as Title IX is often interpreted consistently with Title VII.  The decision to not hear this case at this time means there will be no ruling on this hotly contested issue, and schools and employers will need to wait for the court's input on this hotly contested issue. It is anticipated that a similar case will return to the Supreme Court in the next year or two.

If you have questions about this case or transgender rights in employment, please contact Mellissa Schafer in our L.A. office or your regular Hinshaw attorney.

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