State Attorney General Bob Ferguson continued his national effort to uphold the rights of a transgender student in Virginia on Tuesday as he and 17 other states and Washington D.C. filed a second amicus brief, this one to be heard in the Fourth Circuit Court of Appeals.
The case of 17-year-old Gavin Grimm, a transgender high school student who sued his school board two years ago after it created policy barring him from using the boys’ restroom, was set to be the first transgender rights case ever heard before the U.S. Supreme Court. Oral arguments had been scheduled for March, and Ferguson, along with 18 other states and D.C., filed an amicus brief then, too, asking that the Supreme Court uphold Grimm’s right to use the bathroom that corresponded with his gender identity.
But following the Trump administration’s decision this February to repeal federal guidelines asserting transgender students’ bathroom rights (Education Secretary Betsy DeVos said these were “issues best solved at the personal and local level”), the Supreme Court kicked it back to the Fourth Circuit.
Enter Ferguson and a large coalition of Democratic attorneys general, arguing what has long been on the books in Washington and 19 other states: Gender identity is an explicitly protected class and it is against the law to discriminate.
“Policies barring transgender individuals from using the appropriate facilities for their gender are based in fear,” Ferguson said in a press release Tuesday, “and violate the civil rights of our transgender community members.” The new brief argues that Grimm’s school district bathroom policies violate Title IX of the Civil Rights Act, which protects against sex-based discrimination, and that ensuring transgender protections “yields benefits without causing privacy, safety, or cost problems.”
The series of amicus briefs demonstrates Ferguson’s priorities. “I have an intense interest in civil rights,” he told Seattle Weekly some months ago, before he made national headlines for filing the first lawsuit against President Donald Trump’s first Muslim ban. He created his office’s Wing Luke Civil Rights Unit in 2015 (before that, the state AG’s office would often refer discrimination cases to other agencies, such as the state Human Rights Commission). In July 2016, Ferguson also led a group of states in filing a joint brief supporting federal transgender-rights protections in a Texas-led case attempting to block them.
Grimm is now about to graduate high school, and his years-long fight has earned him national accolades, including being named one of TIME magazine’s 100 Most Influential People of 2017. Ferguson attended the annual gala in late April (pictured with Grimm, above). “I want to be someone that doesn’t have to justify his bathroom use,” Grimm told TIME.
Where the case lands is anyone’s guess at this point. Some wonder if the Fourth Circuit is as likely to decide in Grimm’s favor, now that its decision no longer has the backing of the federal government. The Fourth Circuit’s original ruling, the one that sent it to the Supreme Court the first time, held that the courts should defer to the federal government’s interpretation of Title IX. Now, that interpretation has changed.
Grimm does, however, have the backing of more than just Ferguson and a coalition of Democratic states: 59 tech giants and other major U.S. companies, including Microsoft, also filed an amicus brief in the case on Tuesday, as did labor unions, civil rights organizations, medical associations, former Obama administration officials, and a number of other groups.
If the case does return to the Supreme Court, and the Court upholds Grimm’s rights under Title IX, any state-led effort to restrict bathroom access, such as the anti-trans ballot initiative now once again gathering signatures in Washington state, would become moot.
“Gavin Grimm’s case has a real chance of reaching the Supreme Court on the merits, where it could become precedent across the country,” says Peter Lavalee, a spokesperson for Ferguson’s office. “Therefore, it has significant implications for the people of Washington, and thus it was important for the state’s voice to be heard at the appellate court level.”