Impact Fund Files Amicus Brief In U.S. Supreme Court Transgender Case

Lindsay Nako - Director of Litigation & Training, The Impact Fund

Lindsay Nako - Director of Litigation & Training, The Impact Fund

On March 2, 2017, Impact Fund filed an amicus brief in the U.S. Supreme Court in Gloucester County School Board v. G.G., which at the time was poised to be the first of the transgender access cases to be heard in the Supreme Court. Our brief supports Gavin Grimm, a 17-year old high school student in Gloucester County, Virginia. Gavin is challenging a local school board policy that prohibits transgender students from using the sex-segregated facilities (such as restrooms) that are consistent with their gender identity. The policy is similar to North Carolina’s notorious H.B. 2 legislation and equally discriminatory.

At the time his case was filed, Gavin’s legal arguments were based in part on agency guidance interpreting Title IX’s prohibition on sex discrimination to include discrimination based on a student’s transgender status. The guidance was issued with the express intent of providing a safe and nondiscriminatory environment for all students. On February 22, 2017, the Departments of Education and Justice, headed by newly installed Cabinet Members Betsy DeVos and Jeff Sessions, withdrew this guidance. In response to “significant litigation” and in deference to “the primary role of the States and local school districts,” the Departments of Education and Justice eliminated the protections that the earlier guidance had provided for transgender students. As a result of the withdrawal, the Supreme Court vacated the favorable appeals court decision on March 6 and sent the case back to the Fourth Circuit for further consideration.

Our amicus brief demonstrates that the board’s policy is sex discrimination prohibited directly by the plain language of Title IX, independent of any regulation or guidance issued by the Departments of Education and Justice. The brief explores the current treatment of transgender people under federal laws prohibiting sex discrimination and shows that penalizing transgender people because of their transgender identity or their perceived non-conformity with gender stereotypes violates Title IX’s prohibition on sex discrimination.

“Federal courts across the country have consistently concluded that discrimination against transgender people, which often takes the form of sex stereotyping, violates laws prohibiting sex discrimination,” said Julie Wilensky, Chair of BALIF’s Amicus Committee. “The policy at issue in Gavin’s case is no different.”

Gavin Grimm is represented by the American Civil Liberties Union Foundation and the American Civil Liberties Union of Virginia Foundation, Inc. The Impact Fund also thanks Lambda Legal for its support and assistance.

Impact Fund is proud to have represented a broad coalition of 47 bar associations and non-profit and legal advocacy organizations, including Bay Area Lawyers for Individual Freedom, Advocates for Children of New York, Inc., Alameda Contra Costa Trial Lawyers Association, AIDS Legal Referral Panel, Asian Americans Advancing Justice - Los Angeles, Asian American Bar Association of the Greater Bay Area, Bar Association of San Francisco, Bet Tzedek, BiLaw, California Employment Lawyers Association, California Rural Legal Assistance, Inc., Centro Legal de la Raza, Civil Rights Education and Enforcement Center, Dallas LGBT Bar Association, East Bay La Raza Lawyers Association, Equality California, Equality Federation, Equality Florida Institute, Equality NC, Equality New Mexico, Equality Ohio, Equality Utah, Garden State Equality, Hawai`i LGBT Legal Association, Hispanic National Bar Association, Intersex & Genderqueer Recognition Project, Kansas City Lesbian, Gay and Allied Lawyers, Legal Aid at Work, Legal Aid Society, LGBT Bar Association of Greater New York, LGBT Bar Association of Los Angeles, LGBT Bar Association of Wisconsin, Massachusetts LGBTQ Bar Association, National Employment Law Project, National Employment Lawyers Association, National Queer Asian Pacific Islander Alliance, New Mexico Lesbian and Gay Lawyers Association, North Carolina Advocates for Justice, OutFront Minnesota, QLaw, Queen’s Bench Bar Association of the San Francisco Bay Area, SacLEGAL, Services & Advocacy for GLBT Elders, Stonewall Law Association of Greater Houston, Tom Homann LGBT Law Association, and Virginia Equality Bar Association.