Bathroom signIn March of 2017, the Supreme Court of the United States remanded the high profile transgender student rights case, Gloucester County School Board v. G.G. ex rel. Grimm, no 16-273, to the Fourth Circuit Court of Appeals for further consideration in light of the new administration’s withdrawal of two pieces of federal guidance on transgender student rights and related school obligations. Not surprisingly, on April 7th, the Fourth Circuit Court of Appeals vacated the original preliminary injunction, which permitted plaintiff Gavin Grimm to use his bathroom of choice; the Fourth Circuit’s decision was likewise based on the withdrawal of the agency guidance.

This reversal in effect bars Gavin Grimm from using the boys’ restroom at his school.  In fact, Mr. Grimm is currently a high school senior, and this recent change ensures that he will not be allowed to use the restroom corresponding to his gender identity for the pendency of his high school career.

The course change and resulting Fourth Circuit reversal may be disappointing for Mr. Grimm and his allies; however, two Fourth Circuit judges appended a concurring opinion to the brief order vacating the injunction which had allowed Mr. Grimm to use the boys’ restroom.  The concurring opinion, authored by Senior Judge Andre M. Davis and joined by Judge Henry F. Floyd, goes beyond a mere treatment of clean-cut legal issues and offers observations of Mr. Grimm’s perseverance, aligning him with other high-profile civil rights pioneers, such as Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell.

As noted by Judge Davis, “[t]oday, [Gavin Grimm] adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, ‘the arc of the moral universe is long, but it bends toward justice.’  [Gavin Grimm’s] journey is delayed but not finished.”  The concurrence further notes that the case was “about much more than bathrooms,” stating that it “has shown … the inequities that arise when the government organizes society by outdated constructs like biological sex and gender.”  Judge Davis closed the concurrence by quoting the poem Famous by Naomi Shihab Nye, opining that Mr. Grimm is appropriately famous because “[d]espite his youth and the formidable power of those arrayed against him at every stage of these proceedings, ‘[he] never forgot what [he] could do.’”

Although this concurrence does not alter the effect of the related order, it is possible that it portends future legal development and evolution in the area of transgender legal rights.  For now, public schools in Connecticut are reminded to remain cognizant of existing state law identifying gender identity or expression as a protected class and to follow the withdrawn federal guidance, as urged by Governor Dannel Malloy.