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Posted on behalf of Wayne Young, KASA General Counsel

Lawlines: Transgender Timeline Continues, But When Will It End?

At the KASA Summer Institute in July I presented a school law session. Part of my presentation focused on a timeline detailing the history of transgender litigation and policy decisions over the past several years. Since the presentation, a number of folks have asked me to share with them the timeline I used during the presentation. 

Based on these requests, I have decided to share the timeline as part of this blog.  In addition, there has been a new development as well. The timeline is as follows: 

• October 2014: Gavin Grimm, a biological female identifying as male, begins using the boy’s bathroom at a Virginia public high school
• December 2014: A parent complains, and the school board votes to restrict access
• July 2015: Grimm’s lawsuit against the board for Title IX violations is dismissed
• April 2016: The Fourth Circuit Court of Appeals reinstates the lawsuit
• May 2016: The USDOE and USDOJ (Obama administration) issue a “Dear Colleague” letter that states: “A school may provide separate facilities on the basis of sex but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”
• June 2016: The trial court rules Grimm must be allowed to use the boy’s restroom
• October 2016: The U.S. Supreme Court agrees to hear the case, and places a hold on the lower court ruling
• February 2017: The USDOE and US DOJ (Trump administration) issue a “Dear Colleague” letter stating: “The Departments have decided to withdraw and rescind the above-referenced guidance documents [Obama letter] in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.”
• March 2017: U.S. Supreme Court sends the Grimm case back to the 4^th Circuit for consideration pursuant to the Trump administration guidance
• August 2018: Brown University publishes research indicating nearly 87% of “sudden onset gender dysphoria” among teens is associated with increased use of internet/social media and transgender declaration by friends. The research is quickly edited after backlash from advocacy groups.
• August 2019: Grimm has graduated, but the trial court rules in his favor pursuant to Title IX
• June 2020: U. S. Supreme Court rules in Bostock v. Clayton County that an “individual’s homosexuality or transgender status is not relevant to employment decisions.” As to Title IX issues, the court said: “[None] of these other laws are before us . . .and we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
• August 2020: 4^th Circuit rules 2-1 to uphold lower court decision in favor of Grimm, citing Bostock v. Clayton County
• March 2021: 6^th Circuit upholds college professor’s claim of free speech violation due to being punished for refusing to use preferred pronouns with transgender student
• June 16, 2021: USDOE (Biden administration) issues “Notice of Interpretation” stating, “OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
• June 28, 2021: U. S. Supreme Court refuses to hear Grimm case; 4^th Circuit ruling stands
• August 23, 2021: U. S. 11^th Circuit Court of Appeals invalidates a prior ruling of a three-judge panel issuing a permanent injunction requiring a Florida school districts to allow a transgender student to use the restroom based on gender identity. The case will be reheard “en banc”; that is, by the entire panel of judges comprising the 11^th Circuit. 

Will the 11^th Circuit case be the “next big thing” in the evolution of law as it relates to transgender students? Stay tuned!