June 19, 2020
Through its long-standing engagement with GLSEN, a national nonprofit dedicated to promoting and supporting LGBTQ+ inclusive schools, EducationCounsel has authored numerous amicus briefs along with Willkie Farr & Gallagher LLP on behalf of GLSEN, the National PTA, the American School Counselor Association, and the National Association of School Psychologists (referred to as “amici” below) in the U.S. Supreme Court and several federal circuit courts of appeal. EducationCounsel is a mission-based education consulting firm affiliated with Nelson Mullins that combines significant experience in policy, strategy, law, and advocacy to drive improvements in the U.S. education system.
While equitable access to school restrooms may seem unimportant and tangential to some, being able to use the restroom that matches his gender identity has been the plight of Gavin Grimm, and to an increasing number of transgender and gender non-conforming individuals, for many years. His journey continues with the Fourth Circuit Court of Appeals hearing oral arguments on his case late last month — for the second time.
Last year, EducationCounsel filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit on behalf of Gavin (Grimm v. Gloucester Country School Board). Gavin, who identifies as transgender, is a former student of Gloucester County Schools and has been fighting for relief from a policy that prevented him from using bathrooms and locker rooms that corresponded with his identity.
Grounded in substantial peer-reviewed research and the experience of school districts that have successfully provided inclusive environments and full facilities access to transgender and gender non-conforming students, the amici brief illustrates the consequential harms (affecting health, well-being, and success in school) that transgender and gender non-conforming peers suffer when not provided fully inclusive school environments.
Gavin has been fighting for equal access since 2015, when he first filed suit against the Gloucester County School Board (G.G. v. Gloucester County School Board). Gavin’s case eventually made it to the U.S. Supreme Court in 2017, but the Court ultimately decided to not hear the case because of the current administration’s decision to rescind the Obama-era guidance on transgender and gender non-conforming students, which Gavin’s argument relied so heavily on. The Court remanded Gavin’s case back to the lower courts.
In early 2019, Gavin temporarily prevailed in his four-year fight for a safe, equitable, and affirming learning environment when the U.S. District Court for the Eastern District of Virginia ruled in Gavin’s favor and found that the Gloucester County School Board’s policy “discriminates against transgender students on the basis of their gender identity.” The Court found that the segregation of transgender students and their forced use of individual restrooms “undoubtedly harm[s]” students:
“Transgender students are singled out, subjected to discriminatory treatment, and excluded from spaces where similarly situated students are permitted to go.”
Gavin’s case continues, and his fight is far from over. But his bravery has sparked change around the country, with an increasing number of school districts adopting policies that are supportive, affirming, and inclusive for LGBTQ+ students — all grounded in medical, scientific, and education research and practice.
EducationCounsel has worked to support transgender students and the schools that support them in other cases, as well (see below). Through our relationship with GLSEN and its other national organizational partners, we continue to provide strategic, policy, and legal guidance through engagement with states, districts, and other partners to promote the adoption of inclusive and affirming policies.
Along with Nelson Mullins’s LGBTQ+ Ally and Affinity Group, we take pride in the opportunity to do so.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.