Federal judge denies injunction in Gloucester transgender lawsuit
By Frances Hubbard and Dave Ress
| GLOUCESTER
Gavin Grimm, who identifies as a transgender boy, is requesting to be allowed to use the boys' restroom at Gloucester High School. (Jonathon Gruenke, Daily Press)
U.S. District Judge Robert G. Doumar declined to issue a preliminary injunction on Friday that would have required Gloucester County Public Schools to allow a 16-year-old transgender student to use the boys' restrooms when school starts next week.
The injunction request is a part of a lawsuit filed on behalf of Gavin Grimm by the American Civil Liberties Union. The ACLU is seeking a court order requiring the School Board to let Grimm use the boys' restroom, even though he was born female.
Grimm, who will be a junior at the high school starting Tuesday, will be required to follow the restroom policy the School Board approved in December 2014. The policy requires all students to use single-stall private restrooms or restrooms associated with their physical sex.
The ACLU plans to immediately appeal the decision to the U.S. Court of Appeals for the Fourth Circuit, according to a news release from the organization on Friday.
"It is difficult to face another school year of being singled out and treated differently from other students. I am determined to move forward because this case is not just about me, but about all transgender students in Virginia," Grimm said in the news release.
Doumar filed his order denying the injunction in the U.S. Eastern District Court in Newport News on Friday minus his written opinion. The order stated that the written opinion will follow.
A hearing on the injunction was held in Norfolk on July 27. At that time, Doumar dismissed the Title IX discrimination claims in the lawsuit, saying that federal law allows schools to separate restrooms based on sex.
The U.S. Department of Justice filed what is called a "statement of interest" in federal court in June regarding the lawsuit. The document says the district's policy violates Title IX of the Education Amendments of 1972 because it discriminates on the basis of sex, which the department states includes gender identity and transgender status.
In addition to Title IX, the lawsuit claims that the policy violates the equal protection clause of the 14th Amendment. The court has not yet ruled on that claim.
Doumar said in July that once he filed his written opinion on the injunction, a trial date would be set in the case.
Gloucester Schools Superintendent Walter Clemons said Friday, "We are aware of the ruling at this point. We'll just see how things move forward from this point."
He did not comment further.
David Corrigan, an attorney representing the school district, could not be reached for comment Friday.
He argued in court in July that "transgender" is not a protected class under the Constitution. He said the school district had offered three unisex restrooms to the entire student body at the school and allowed Grimm to continue to use the girls' restrooms, which he has chosen not to do.
"All students have equal comparable restroom facilities," he said. "He is not being treated differently."
Joshua Block, an attorney for the ACLU, reiterated in the news release on Friday the same argument he made in court in July — that the policy creates a stigma with its unequal treatment.
"As a result of the decision, Gavin will have to start the school year under a demeaning and stigmatizing policy that relegates him to separate restrooms from his peers. We expect today's decision to be reversed on appeal," Block said.
Doumar said in July that he was worried that Grimm, who is still biologically a female, could endure harassment or worse if allowed to use the boys' restrooms.
"What happens here is a question of precedence," Doumar said in July. "I worry about precedence. If we cut out the (policy), does it mean anyone who genuinely believes they are of the opposite sex can use any restroom?"
He asked if a ruling in Grimm's favor would allow all transgender students in Gloucester County and the entire eastern district of Virginia to begin using the restroom of their choice.
He told Block repeatedly during the hearing that Block was fighting an "uphill battle" in the case.
Once Doumar's written opinion is issued on the injunction, the school district has 21 days to file an answer to the lawsuit. Then a trial date will be set.
In the suit, Grimm seeks to have the school district's restroom policy declared unconstitutional and removed, and asks for an unspecified amount of money for damages.
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If the judge rules in Grimm's favor, it will be the first time a federal court has said that restricting a transgender student's restroom use is discriminatory.
Earlier this year, the U.S. District Court in Western Pennsylvania dismissed a lawsuit that a transgender male student filed against the University of Pittsburgh. The lawsuit was filed in 2011, and a judge said in April that the university didn't discriminate against the 25-year-old student when it prohibited him from using male facilities because he was medically a woman.
Since the Grimm case began creating headlines last fall, disputes over transgender restroom policies in schools have popped up across the country.
In Ohio, Troy City Schools Superintendent Eric Herman announced this week that the school will let a transgender student use the boys' room, saying that to deny the student's request would violate federal law.
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Herman's decision sparked protests by parents, while a Missouri transgender girl's request to use the girls' bathroom split her school, with some students walking out to protest and others holding a demonstration to show their support. Lila Perry told Hillsboro High School officials she wasn't content to keep using a single-sex faculty bathroom as she had been doing.
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In the rural upstate New York town of Potsdam, Potsdam Central Superintendent Joanne M. Chambers said last month that the district would now allow transgender students who now use a unisex bathroom the option of using the bathroom or locker room of the gender with which they identify.
In April, the Nevada Assembly rejected a bill would have required students to use bathrooms corresponding to their biological sex and Minnesota's House of Representatives voted to restrict transgender students' access to school locker rooms and bathrooms.
The Maine Supreme Court ruled in 2014 that Regional School Unit 26 violated the rights of a transgender girl, identified by the pseudonym Susan Doe, when it reversed policy as she reached middle school and banned her from using girls' rest-rooms.
Hubbard can be reached by phone at 757-298-5834; Ress at 757-247-4535.
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