Title IX Still A Complex Battleground Due To Changing Administrations

Title IX, the 1972 law that effectively states schools cannot discriminate against or deny anyone benefits on the basis of sex, has been a hot button topic over the last few years, particularly as it pertains to transgender students. Transgender student Gavin Grimm began his high school career as a student simply wanting to use the bathroom that correlated to his gender, and although his school had allowed him to do so without issue for nearly two months, the school board put forward a resolution that stated students needed to use the restroom that corresponded to their biological sex instead of their gender identity. Grimm’s mother filed suit in July 2015 on behalf of her son, stating that the board’s resolution violated Grimm’s right to be free of sex discrimination protected under both Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.

Under President Barack Obama, it appeared as though Grimm could have very well won his Title IX court battle, and the case went all the way to the Supreme Court for what could have been a landmark decision in a complex case. The “Dear Colleague” letter jointly released May 13, 2016 by the United States Department of Justice Civil Rights Division and the United States Department of Education Office of Civil Rights seemed to further solidify Grimm’s rights, as protections were put in place with that letter that allowed transgender students to safely use the bathroom that corresponded with their gender identity.

While Grimm’s case waited to be heard by the Supreme Court, however, President Donald J. Trump took office. By February 22, 2017 – a month and two days after he took office – the U.S. Department of Justice Civil Rights Division and the United States Department of Education Office of Civil Rights released another “Dear Colleague” letter, and it was a move that many saw coming, but it was not without some contentiousness. According to CNN, Education Secretary Betsy DeVos privately did not support the decision to withdraw the protections for transgender students that President Trump proposed.

Soon after the second “Dear Colleague” letter came out, the Supreme Court determined in late March that Grimm’s case should go back to the 4th Circuit. Grimm is arguing, through his legal team from the ACLU, that his 14th Amendment rights – that’s the amendment guaranteeing equal protection under the law – were violated, as were his rights to protection under Title IX. However, there are two problems that have erupted since Grimm’s case began in 2015.

The first problem is that the “Dear Colleague” letter released under the Trump administration does not offer any sort of clear guidance about how schools should continue to offer protections to students identifying as LGBTQ but still effectively require trans students to use the bathroom corresponding to their assigned gender at birth. The second issue that’s currently before the courts is that Grimm is now a high school graduate; does that mean his case should be tossed?

Certainly, Grimm has made it very clear that he intends on continuing the fight that was begun in 2015. According to the ACLU, as of August 12, Grimm’s legal team is “moving forward with his claim for damages and his demand to end the anti-trans policy permanently.”

The ACLU also stated, via Twitter, that it believed amending their pursuit of justice might very well help Grimm in the fight to end his school board’s seemingly anti-trans policy.

“We believe that today’s filing represents the most efficient path forward to ensuring that justice is served for Gavin,” – @JoshACLU

— ACLU of Virginia (@ACLUVA) August 11, 2017

Per the ACLU, Grimm’s legal team filed the request for a preliminary injunction two years ago, yet there has yet to be a response as the case goes from court to court. GayCityNews reports that on May 30, 2017, the Chicago-based Seventh Circuit Court of Appeals determined that Title IX bars public schools from refusing to allow trans students to use bathrooms aligning with their gender identity. That case was Whitaker v. Kenosha (Wisconsin) Unified School District, and the outcome for that case is one that ideally, Grimm would like to see happen here.

Now that Grimm is a high school graduate, though, the courts have to decide whether or not the case should go forward. Gloucester County School Board argues that because Grimm has graduated, there’s no longer an issue of conflict, while Grimm’s side argues that as an alumnus of his high school, which is a part of the Gloucester County School Board, he has an ongoing vested interest in seeing his Title IX fight resolved with the ending of the anti-trans policy.

The court is not certain that Grimm does have an actual continuing interest, however.

“A crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot,” the court wrote.

Should the courts determine that Grimm lacks the “continuing interest” necessary to resolve the case, Grimm could appeal that decision. However, it remains clear that Title IX, particularly under the Trump administration, is a complex, troubled battleground; it may require the likes of the ACLU, Grimm and countless other transgender students to step forward and see it resolved.

[Feature Image by Jemal Countess/Getty Images for TIME]