Bench Memos

Law & the Courts

Transgender Legal Follies, Continued

There she goes again.

When I first encountered federal district judge Arenda L. Wright Allen some four years ago, she was racing to bar the state of Virginia from enforcing its marriage laws. Just last week, she burst past other obstacles to issue a ruling in favor of Gavin Grimm in Grimm’s lawsuit against the Gloucester County School Board’s bathroom policies.

Grimm, now 18 and living in Berkeley, California, is a young woman who identifies as male (a “transgender man,” in newspeak). As you might recall, back in 2016, Grimm, then using the pseudonym G.G., won a badly confused Fourth Circuit ruling that required her high school to allow her to use the boys’ restrooms (rather than the girls’ restrooms or the single-stall restrooms that were made available to her). Last year, the Supreme Court, without any recorded dissent, vacated the Fourth Circuit’s judgment and remanded the case “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”

On remand, Grimm had the remarkable good luck of having the case transferred from Judge Robert G. Doumar (who had ruled for the school district on the first go-round) to Judge Wright Allen. Wright Allen has avidly seized the opportunity. Let’s take a look at her ruling denying the school district’s motion to dismiss Grimm’s complaint:

1. Wright Allen embraces the transgender ideology in her statement of the facts. We are told, for example, that “Mr. Grimm is an eighteen-year-old man,” that “When Mr. Grimm was born, hospital staff identified him as female,” and that “Mr. Grimm has known from a young age that he has a male gender identity.”

2. Despite the Supreme Court’s direction that the case be remanded “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017,” Wright Allen gives no consideration to that guidance document.

3. As Wright Allen notes, a motion to dismiss merely tests the sufficiency of a complaint, so the judge, for purposes of deciding the motion, assumes that the allegations in the complaint are true and draws all reasonable inferences in favor of the plaintiff. In other words, it would be one thing to deny the school board’s motion to dismiss and quite another to grant summary judgment in favor of Grimm.

Wright Allen purports merely to have denied the school board’s motion to dismiss, but her flawed legal determinations on all sorts of matters effectively guarantee a victory in the case to Grimm.

Wright Allen rules that a claim of discrimination on the basis of transgender status is a claim of sex discrimination, and specifically of “gender stereotyping,” actionable under Title IX. But she never slows down to realize that assigning bathrooms by sex does not discriminate on the basis of transgender status and is not gender stereotyping. It is Grimm who wanted* the high school to discriminate on the basis of gender identity—to have girls who identify as male use the boys’ restrooms. It is the school board’s policy that declines to take into account (declines to discriminate on the basis of) gender identity. It is Grimm who wanted the high school to engage in gender stereotyping—to treat a girl who identifies as male as though she were male. Indeed, it is the transgender ideology that is built on stilts of gender stereotypes, on the bizarre notion—to quote an architect of the Obama administration’s policy—that women who “live, work and study as men” (whatever those sexist notions might mean) therefore are men. It is the school board’s policy that doesn’t engage in gender stereotyping but instead assigns restrooms based on sex.

Addressing Grimm’s Equal Protection Clause claim, Wright Allen also uses the motion to dismiss as the occasion to rule that classifications based on transgender status must be subjected to intermediate scrutiny and to disparage as “hollow” the board’s concern about the privacy rights of students. Again, Wright Allen never pauses to recognize that the board’s policy is based on sex, not on transgender status.

4. Because Wright Allen’s ruling is nominally only a denial of the school district’s motion to dismiss, the school district may pursue an interlocutory appeal only with Wright Allen’s permission. Perhaps I’m mistaken, but Wright Allen seems eager to ensure that the school district never pursues an appeal. That presumably is why, at the same time she has gone out of her way to make clear that she would deliver a victory to Grimm, she closes her ruling by directing the parties to schedule a settlement conference. If the school district, seeing no hope, ends up settling, it will forfeit its rights to appeal.

* Having graduated from high school last year, Grimm is no longer subject to the school board’s policy and has abandoned her claim for injunctive relief. In December 2017, Wright Allen ruled that Grimm’s claims for nominal damages and for “retrospective declaratory relief” mean that her case is not moot.

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