A battle won, but the war rages on

A battle won, but the war rages on

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Gavin Grimm, at long last, has won his case.

When Grimm was in his second year at Gloucester High School in Virginia, he came out as a trans boy. As soon as he opted to use the boys’ restroom, the Gloucester County School Board decided to require all changing rooms and bathrooms “be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”

Grimm refused to use the girls’ restroom, as well as a broom closet that had been jury-rigged into a restroom. With the support of the American Civil Liberties Union, Grimm sued the school under Title IX.

For the uninitiated, Title IX is part of the Education Amendments of 1972, a followup to the Civil Rights Act of 1964. As written, Title IX is as simple as it was groundbreaking: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In 2010, the U.S. Department of Education under the Obama administration issued guidance clarifying that transgender students were protected from sex-based discrimination under Title IX, and that trans students needed to be treated in a way consistent with their gender identity when it came to their time in school.

This, of course, led to a lot of the arguments targeting trans students and helped elevate right-wing attacks on transgender rights. In addition, the DOE, under the Trump administration, has been eroding 2010 protections. Last year, Education Secretary Betsy DeVos declared Title IX doesn’t give trans students access to restrooms aligned with their gender identity.

The U.S. Department of Health and Human Services has been trying to go a step further, declaring that sex is determined at birth and, in effect, halting recognition of transgender people’s gender identity on a far wider scale.

Grimm’s case has gone back and forth. Initially dismissed by Judge Robert G. Doumar, who also declared that being transgender is a “mental disorder,” the Fourth Circuit Court of Appeals overturned Doumar’s ruling and sent the case back to district court.

The U.S. Supreme Court eventually stayed the Fourth Circuit and even decided to take up the case — but changed its stance in early 2017, citing DeVos’ new position on trans students and Title IX.

The Gloucester County School Board eventually sought to dismiss the case, which was denied by U.S. District Judge Arenda Wright Allen. She also declared that, in spite of the DOE and SCOTUS, Grimm had a valid claim under Title IX.

Last week, with Grimm requesting a summary judgment, Allen awarded him fees, expenses and a token dollar for damages.

More importantly, Allen issued a permanent injunction that requires the school board to update Grimm’s transcripts to reflect his gender identity.

This is a very big deal. Even in the era of President Donald Trump and his rabidly conservative administration doing all they can to strip away the rights of transgender people and other populations, we have at least one solid victory.

This is the second win in recent weeks, if you recall: I also wrote about the obliteration of North Carolina’s House Bill 2 with a victory in Carcaño v. Cooper, all but sticking a fork in the anti-transgender “bathroom bill” that ended Gov. Pat McCrory’s career and cost the Tar Heel State roughly $400 million in jobs and investments.

Yet while we can and should celebrate these victories, we also cannot be complacent. The next battle is on the horizon.

On Oct. 8, SCOTUS will hear three related cases that could devastate LGBTQ rights for decades to come, quickly quashing any joy we might feel in the wake of Grimm’s win.

The contention in Harris Funeral Homes v. EEOC is that Aimee Stephens, a transgender woman who sought to transition on the job and subsequently was fired, was discriminated against on the basis of her sex and that terminating her violated Title VII.

Title VII, in short, does for employment rights what title IX does in schools.

If lost, this case, coupled with Zarda v. Altitude Express and Bostock v. Clayton County — both of which are tied to sexual-orientation discrimination as a form of sex discrimination under Title VII — could effectively strip LGBTQ people of any hope for federal protections. And the current makeup of the SCOTUS bench should frighten us.

All of this comes at a time when transgender people have largely been stripped of being able to serve in the military, based on the flimsiest of arguments — and yet accepted by this Supreme Court.

DeVos and the DOE are also taking another stab at things, with their Office of Civil Rights looking into Connecticut’s treatment of transgender athletes, claiming quite the opposite of the Obama administration by using Title IX to claim cisgender girls are facing sex discrimination if transgender girls are allowed to compete with them.

The Trump administration, with the support of Republican Senate Majority Leader Mitch McConnell, has been busy installing very-conservative federal judges across the country. As their numbers swell, it is highly likely we will see more and more challenges against our rights — some of which, in this climate, we are likely to lose. This is why we need to be ready to fight for new leadership for 2020. 

So, while Gavin Grimm won his battle — and may have helped protect every other transgender student — the war is far from over. 

Gwen Smith encourages you to support the ACLU and be ready to vote next year. You’ll find her at gwensmith.com.


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