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Because sex-based classifications are quasi-suspect, they are subject to a form of heightened scrutiny under the Equal Protection Clause. Specifically, they are subject to intermediate scrutiny, meaning that they fail unless they are substantially related to a sufficiently important governmental interest. To survive intermediate scrutiny, the state must provide an exceedingly persuasive justification for its classification.
Plaintiff-appellee Gavin Grimm was a biological female, but whose gender identity was male. At first, the Gloucester County School allowed plaintiff to use the boys’ bathroom, but once word got out, the Gloucester County School Board (the “Board”) faced intense backlash from parents, and ultimately adopted a policy under which students could only use restrooms matching their "biological gender." The Board built single-stall restrooms as an "alternative" for students with "gender identity issues." Grimm suffered from stigma, from urinary tract infections from bathroom avoidance, and from suicidal thoughts that led to hospitalization. Nevertheless, plaintiff persevered in his transition, and underwent the necessary processes to reflect the change. When he provided the school with his new documentation, the Board refused to amend his school records. Plaintiff sued the Board, alleging that, as applied to exclude him from the boys’ bathrooms, the Board's policy violated the Equal Protection Clause of the Fourteenth Amendment and constituted discrimination on the basis of sex, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). The district court granted plaintiff summary judgment, and awarded him nominal damages, declaratory relief, attorney’s fees, and injunctive relief from the Board’s refusal to correct his school records. The Board appealed.
Did the Board’s policy, i.e., that the students could only use restrooms matching their "biological gender," constitute sex-based discrimination?
The Court first noted that plaintiff was not required to exhaust the hearing requirements of 20 U.S.C.S. § 1232g as the gravamen of his complaint was discrimination. The Court held that the heightened scrutiny applied to the equal protection challenge to the board's policy prohibiting transgender students from using restrooms that did not match their biological genders as it created sex-based classifications, and sex and transgender were quasi-suspect classes. Moreover, the Court held that the policy violated equal protection as it was not substantially related to the important interest in protecting student privacy. Specifically, the plaintiff had used the boys’ restrooms for seven weeks without incident, after the community became aware of that use privacy actually increased, and there was no evidence that bodily privacy of cisgender boys using the boys’ restrooms increased when the plaintiff was banned from those restrooms.