The Office of Civil Rights of the Department of Education has informed five Northern Virginia school districts that their transgender policies violate Title IX of the Education Amendments of 1972. It has demanded the adoption of new rules to protect girls sports and private spaces from intrusion by biological males. As an interim measure, OCR has placed the districts on a “reimbursement only” status for federal funding.
The school systems claim they are in full compliance with the law. Two of them (Fairfax and Arlington counties) filed suit last Friday, challenging OCR’s restriction of up-front outlays of federal funds. The district’s defense is based largely on decisions by three-judge panels of the U.S. Court of Appeals for the Fourth Circuit (which includes Virginia).
The primary case they rely on is Grimm v. Gloucester County School Board, decided in 2020. It involved a biological female who changed her first name to Gavin. Gavin dressed and groomed as a male. Gavin’s mother consented to hormonal replacement treatment and a double mastectomy after being advised by a counsellor that her child’s suicidal thoughts might thereby be alleviated. When Gavin’s use of the boys’ bathroom caused controversy, the local school board adopted a policy requiring students to use restrooms identified with their biological sex. Grimm rejected an accommodation to use a gender-neutral facility. He sued, claiming the school policy violated Title IX and the equal protection guarantee of the Constitution.
The federal district court ruled in Grimm’s favor, and the court of appeals affirmed in a 2-1 decision. The majority judges (both Obama appointees) reasoned that Grimm had been discriminated against because there were no relevant differences between him and biological males regarding the use of the school’s restrooms.
Grimm was reaffirmed and extended in a 2024 decision of the Fourth Circuit, B.P.J. v. West Virginia State Board of Education. It involved a statute barring transgender girls from competing with biological girls on non-co-ed school athletic teams. The plaintiff, a 13-year-old biological male who identified as female, had taken puberty-blocking drugs prior to puberty and therefore did not have a level of circulating testosterone greater than that of biological females. B.P.J. wanted to compete in girls’ track and field events. A two-judge majority (Biden and Obama appointees) held that the law violated Title IX as applied to the plaintiff. They reasoned that protecting the safety of girls wasn’t a valid concern because B.P.J.’s chosen sport didn’t involve physical contact between the sexes, and fairness wasn’t a valid concern because B.P.J.’s testosterone level wasn’t higher than that of biological girls. They were not deterred by the fact that Title IX explicitly allows female-only sports because, in their view, B.P.J. was a female.
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Finally, just a couple of weeks ago, the Fourth Circuit issued a preliminary injunction in Doe v. South Carolina against the enforcement of a statute that was identical in all material respects to the restroom-access policy involved in the Grimm case.
The Northern Virginia school districts claim that these precedents validate their transgender policies. This is questionable for several reasons.
Grimm and Doe focused only on the use of restrooms. There were no issues about access to locker rooms or participation in sports. The plaintiff in Grimm was given permission to complete his physical-education requirements online and did not use the school locker rooms. The court of appeals felt that any legitimate privacy concerns regarding the restrooms were resolved by the school district’s enclosure of the stalls with privacy barriers and doors. In contrast, the Northern Virginia cases involve access to locker rooms, where different issues of safety and dignity are involved.
B.P.J. was also a narrow decision. It did not rule that transgender girls are always entitled to compete in girls’ only sports. It only decided that the West Virginia law was unlawful “as applied” to a biological male who had blocked puberty before its onset and who wanted to compete in a non-contact sport.
The Northern Virginia policies are far broader. The students in Grimm and B.P.J. had long-standing medical diagnoses and treatments consistent with transgender status. In contrast, Fairfax County allows any student who self-identifies as transgender, or as “gender expansive,” to be treated as such. They may identify as male on some occasions and as female on others.
Unlike Grimm, the policy covers access to locker rooms and sports participation as well as restrooms. The policy even provides that if a team travels and requires overnight accommodations, a transgender student can be roomed with a member of his or her self-identified gender, apparently without the prior consent of the other student or their parents.
In Fairfax County, the rights of transgender students are not only equal to, but have precedence over, the rights and interests of others. For example, if 20 biological females on a team object to showering with a biological male, the male has an absolute right to use the girls’ facility, and the others must all seek alternative accommodations.
The legal landscape has also changed. The court in Grimm held that legal distinctions based on sex are “suspect” and, therefore, that the government must establish an “exceedingly persuasive justification” for them. This standard was rejected by the Supreme Court last year in the Skrmetti case, which upheld a Tennessee law prohibiting the use of puberty blockers and hormonal treatments to treat gender dysphoria in minors. The court ruled that the proper test is whether the law has a “rational basis.” Under that standard, the outcome in the cases relied on by the school districts may have been different.
The Fourth Circuit is one of the most liberal appeals courts in the country. Others have issued decisions inconsistent with Grimm, Doe, and B.P.J. The differing opinions call for resolution by the Supreme Court. In fact, that court has very recently accepted the B.P.J. case for review. And it is very possible that the conservative majority on the court might decide that Title IX protects biological females from biological males in intimate spaces and in athletic activities.
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Nevertheless, the Northern Virginia school districts may win a short-term victory. They will almost certainly seek a preliminary injunction to restore up-front federal funding while the dispute is being litigated. In the recent Doe case, the court held that Grimm is binding in the Fourth Circuit unless and until the Supreme Court overturns B.P.J. And although the Northern Virginia policies are quite different than what was involved in Grimm, a trial court might be persuaded to rely on that precedent for the time being.
Hopefully, however, clarity and common sense will be restored within the year.
Mark Spooner is a retired lawyer who frequently comments on Fairfax County public schools in his blog at FairfaxSchoolsMonitor.com