This week, the U.S. Court of Appeals for the 4th Circuit became the second federal appellate court to hold that school policies regarding bathroom use based on biological sex is sex discrimination under Title IX, which applies to educational providers that receive any funds from the federal department of education. 
 
The plaintiff-appellee, Gavin Grimm, a transgender student at Gloucester County High School, first sued the Gloucester County School Board in 2015 alleging Equal Protection and Title IX violations for its refusal to allow him to use the men’s restroom at Gloucester County High School. Grimm’s sex assigned at birth was female, but he identifies as male.
 
In 2019, the district court granted Grimm summary judgment on his claims, and the school board appealed. The Fourth Circuit Court of Appeals affirmed the district court’s decision, holding that the school board’s restroom policy violated the Equal Protection Clause and Title IX, because it was an impermissible sex-based classification that bars similarly situated transgender males from using the same restroom as people assigned male at birth. 
 
The two circuit courts effectively treated subjective mental states about one’s sex as equal to the objective biological sex of male and female. Ironically, the decision follows almost immediately on the heels of a letter sent by the Department of Education’s Civil Rights Division to a group of organizations such as the Family Action Council of Tennessee that said, “The Supreme Court’s opinion in Bostock does not affect the Department’s position that its Title IX regulations authorize single-sex teams based only on biological sex at birth – male or female – as opposed to a person’s gender identity.”

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