By BEN FINLEY
NORFOLK, Va. (AP) — Gavin Grimm, the transgender man who sued after being barred from using boys bathrooms in high school, remains female today, no matter what his birth certificate or a Virginia judge might have said, a lawyer for the school board argued in federal court Tuesday.
Attorney David Corrigan declared that gender is not a “societal construct.” It doesn’t matter that Grimm underwent chest reconstruction surgery and hormone therapy, he said — the Gloucester County School Board still considers him a woman.
The hearing in Norfolk was the latest step in a yearslong legal battle that has come to embody the debate about transgender student rights.
Grimm’s lawsuit became a federal test case and was supposed to go before the U.S. Supreme Court. But the high court hearing was canceled after President Donald Trump rescinded an Obama-era directive that students can choose bathrooms corresponding with their gender identity.
The issue remains far from settled in schools across the nation.
Joshua Block, an attorney for the American Civil Liberties Union, told the judge Tuesday of the “pain and discomfort” that Grimm felt from not going to the bathroom for a long time at his high school in rural Virginia.
Block said the board’s policy required Grimm to use girls restrooms or private bathrooms, which weren’t always close to class. Grimm sometimes felt like his “bladder was going to burst” and eventually suffered a urinary tract infection, Block said.
Grimm was singled out and stigmatized, Block said. And despite graduating in 2017, Grimm’s humiliation continues because the school board refuses to change the gender on his high school transcripts.
Grimm, now 20 and living in California, has undergone chest reconstruction surgery and hormone therapy. He also obtained a Virginia court order and Virginia birth certificate declaring his sex is male in 2016, when he was still in 12th grade.
Corrigan, the school board’s lawyer, argued that its bathroom policy is based on a binary, “two choices for all” view of gender — not a “societal construct.”
He said the board treated Grimm with respect and said Grimm refused to use the single-stall restrooms on the advice of the ACLU.
“He was provided with options,” Corrigan said.
U.S. District Court Judge Arenda Wright Allen questioned whether the board had the authority to question the validity of a birth certificate or court order.
Corrigan said those things did not determine Grimm’s gender but anatomy does, and asserted that Grimm hasn’t undergone gender reassignment surgery.
“Grimm’s amended birth certificate does not change his biological and physiological sex, which remains female,” he said.
The judge has sided with Grimm during previous steps in the case. And she famously overturned Virginia’s ban on same-sex marriage in 2014. She is expected to issue a ruling in the coming weeks.
Her eventual decision could affect schools in Virginia and reverberate beyond the state if the case reaches the federal appeals court that also oversees Maryland, West Virginia and the Carolinas.
The ACLU says the school board violated Grimm’s rights under the U.S. Constitution’s equal protection clause as well as under Title IX, the federal policy that protects against gender-based discrimination.
Harper Jean Tobin, policy director for the National Center for Transgender Equality, said Grimm’s case likely will join the “steady drum beat” of recent court rulings favoring transgender students in states including Maryland , Pennsylvania and Wisconsin . But she said a patchwork of differing transgender bathroom policies are still in place in schools across the country.
“Whether it’s the best of times or the worst of times for transgender students really can depend on where you live and who your principal is,” she said.
Gary McCaleb, senior counsel for the conservative Christian group Alliance Defending Freedom, said the overall issue is far from resolved in the courts.
McCaleb cited a federal discrimination complaint the ADF filed in June that says a Connecticut policy on transgender athletes is unfair because it allows transgender girls to consistently win track and field events. He also said a pending U.S. Supreme Court case involving a transgender woman who was fired by a Michigan funeral home could affect school bathroom policies.
McCaleb said that “no student’s right to privacy should be contingent on other students’ beliefs about their gender.”
Grimm’s case began after his mother notified school administrators that he had transitioned to a boy as a result of his medical treatment for gender dysphoria. That was at the start of his sophomore year at Gloucester High School, which is about 60 miles (95 kilometers) east of Richmond and near the Chesapeake Bay.
Grimm was initially allowed to use the boys restroom. But after some parents complained, students were told their use of restrooms and locker rooms “shall be limited to the corresponding biological genders” or a private restroom.
A federal judge sided with the school board. But the 4th Circuit Court of Appeals ruled in Grimm’s favor, citing the Obama directive on bathrooms. The U.S. Supreme Court scheduled a hearing, but it was canceled after the Trump administration rescinded the Obama-era directive.
Grimm graduated in 2017 and has worked as an activist and educator while his case continued in the lower courts.
In February, the school board appeared to consider settling, and proposed ending its bathroom policy. But many residents spoke out against the suggested change. The board did not take a vote on it.