In its opinion today in Grimm v. Gloucester County School Board, a divided Fourth Circuit panel ruled that a school board violated the Equal Protection and Title IX rights of a “transgender male”—i.e., a female who identified as male—by barring her from using the boys’ restrooms at her high school. Judge Henry Floyd wrote the majority opinion, which Judge James A. Wynn Jr. joined. Judge Paul Niemeyer dissented. (Floyd and Wynn were appointed by President Obama; Niemeyer, by President George H.W. Bush.)
For the majority, the fact that the student, Gavin Grimm, is actually of the female sex is irrelevant. Floyd faults the school board for “privileg[ing] sex-assigned-at-birth over Grimm’s medically confirmed, persistent, and consistent gender identity.” Instead, he maintains that “the overwhelming thrust of everything in the record—from Grimm’s declaration, to his treatment letter, to the amicus briefs—is that Grimm was similarly situated to other boys, but was excluded from using the boys restroom facilities based on his sex-assigned-at-birth.” (Emphasis added.) As the phrase “to other boys” shows, Floyd treats Grimm as though he were in fact a boy.
Floyd purports to draw guidance from the Supreme Court’s recent decision in Bostock v. Clayton County. But Justice Gorsuch’s statutory analysis in Bostock, badly flawed as it is, is predicated on the proposition that a woman who identifies as a man is in fact a woman. Under Gorsuch’s reasoning, an employer who treats a woman who identifies as a man (and, say, wants to wear men’s clothing) differently than a man who identifies as a man is engaged in sex discrimination. If the woman who identifies as a man were in fact a man, there would be no discrimination on the basis of sex. In short, Bostock repudiates the proposition that a “transgender male” is just like any other male.
Once you correct Floyd’s misconception that Grimm is a boy, his reasoning collapses. Floyd acknowledges that the board’s policy “creates sex-based classifications for restrooms,” and he does not purport to invalidate sex-segregated restrooms. But it’s that sex-based classification—not any classification on the basis of transgender status— that means that Grimm can’t use the boys’ restrooms. In other words, Grimm, as a biological female, is not “similarly situated” to boys.
Grimm did not challenge the board’s policy insofar as it applies to locker rooms. The panel majority’s Equal Protection analysis, which considers whether the board’s policy is “substantially related to its important interest in protecting students’ privacy,” might well allow a different conclusion with respect to locker rooms. But I don’t see how the majority’s Title IX analysis wouldn’t also apply to require schools to allow boys who identify as female to use the girls’ locker room and to allow girls who identify as male to use the boys’ locker room.