Over the past decade, the subject of gender identity and transgender Americans has become a heavily followed news item. Activism across the country for the transgender population has strengthened and broadened a movement demanding fair and equitable treatment. The courts, at both the state and federal level, have been challenged to address the legal aspects of gender identity and transgender rights.
For New Jersey, one of the most significant legal cases in the area of gender identity and transgenderism is the 2017 decision in G.G. ex rel. Grimm v. Gloucester County School Board. G.G. was born female, but in 2014 informed his parents he was transgender. He legally changed his name to a male name and lived as a male. By agreement with the high school principal, after this transition, G.C. was permitted to use the male restrooms at his high school. A subsequent policy change by the Board required students to use restrooms based on biological gender “and students with gender identity issues shall be provided an alternative appropriate private facility.” G.G. was therefore required to use the woman’s bathroom or to use a unisex bathroom available to male or female students. G.G. alleged that the policy change made him feel “even more stigmatized” and “serve[d] as a daily reminder that the school views him as ‘different’.” His subsequent lawsuit, filed against the Board in June 2015, alleged that the new policy violated his rights pursuant to Title IX of the Education Amendments Act of 1972 and the Equal Protection clause of the Constitution and that the Board’s policy.
"Although this case is not specific to New Jersey, local school boards continue to navigate through the evolving legal standards to protect transgender students. As the protections of Titles VII and IX expand, schools and employers must be mindful of their policies and ensure that they preserve the rights, dignity and respect for student and workers, regardless of sexual orientation, gender, or gender identity" said Jennifer Roselle, Esq., Counsel at Genova Burns.
Before beginning his sophomore year in high school, G.G. and his mother notified officials at Gloucester High School that he was transgender, had legally changed his name to a male name, and that he should be referred to with male pronouns. In addition to taking steps to ensure that he would be treated as a male student, several weeks after the start of the school year, and at G.G.’s request, the principal allowed G.G. to use the male restrooms. Also G.G. used the male restrooms for a period of about seven weeks without incident.
Thereafter, one student and numerous members of the community began complaining that a transgendered boy was using the male restrooms. Members of the community attended public board of education meetings, displayed open hostility towards G.G., referred to him as “girl” or “young lady” and threatened to vote the board members out of office if they refused to adopt a new policy. At the December 9 board of education meeting, the members adopted by a 6-1 vote, a new policy limiting the use of boys’ and girls’ bathrooms to students of the “corresponding biological gender,” and proving students with “gender identity issues”, including G.G. “alternative appropriate private” restrooms and changing rooms.
G.G. filed suit against the Gloucester County School Board in June 2015 seeking injunctive relief entitling him to use the boys’ bathroom at the start of the school year. He also alleged the district’s policy violated his rights under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the United State Constitution.
The district court denied the injunction and dismissed Gavin’s claim under Title IX on the basis that Title IX did not prohibit discrimination based on gender, gender identity or sexual orientation. That decision was appealed before the U.S. Court of Appeals and the lower court's decision was overturned in the summer of 2016. The Gloucester County School Board appealed to the Supreme Court of the United States, and the Court of Appeals mandate was stayed pending the Supreme Court’s decision.
During the pendency of his suits, G.G. began hormone therapy, was issued a State identification card identifying him as male, underwent chest-reconstruction surgery. In 2016, he obtained a court order declaring his sex as male and directing the department of health to issue a birth certificate listing his sex as male. Despite the request, his high school refused to change his sex on his transcript.
In March of 2017, the Supreme Court vacated the decision below and remanded G.G.’s to be reconsidered in light of the Departments of Justice and Education rescission of Title IX guidance clarifying protections for transgender students. G.G. subsequently filed an Amended Complaint in the U.S. District Court of the Eastern District of Virginia, Newport News Division in August 2017. The Gloucester County School Board sought dismissal the following month. In May 2018, the U.S. District Court denied the school board’s motion to dismiss the case, ”allegations of gender stereotyping are cognizable Title VII sex discrimination claims and, by extension, cognizable Title IX sex discrimination claim.” Indeed, the Court reasoned his Title IX claim was a proper claim of discrimination under Title IX “on the basis of sex-this is, based on his transgender status.” A subsequent opinion from the District Court, offered this past August, has reinforced the decision that “the district’s policy discriminates against the transgender community on the basis of gender nonconformity,” and that “the Board has discriminated against [G.G.]on the basis of his transgender status in violation of Title IX.”
As of mid-August 2019, the Gloucester County School Board was still planning to appeal the decision but will comply with the district court’s mandate that it issue Gavin a transcript showing a male gender marker.