Does the Fourth Circuit's Grimm decision still require Virginia school districts to let transgender students use bathrooms matching their gender identity, after the Supreme Court's Skrmetti ruling?

Plain-English summary

Delegate Karen Hamilton asked whether the Fourth Circuit's Grimm decision applies beyond the facts of that case and whether the Supreme Court's later Skrmetti decision limits its application. The Virginia Attorney General answered that Grimm's holdings are limited to its facts and that Skrmetti weakens arguments for extending them.

In Grimm, the Fourth Circuit held that Gloucester County's bathroom policy violated the Equal Protection Clause and Title IX as applied to Gavin Grimm. The AG emphasizes the specific record: the alternative restrooms' inconvenient locations, evidence about the board's privacy rationale, and the policy's effect on Grimm. He also notes that Grimm did not decide a locker room challenge.

The AG reads Skrmetti as undercutting several parts of Grimm's analysis. He says a policy requiring all students to use bathrooms consistent with their sex would not trigger heightened scrutiny merely because it refers to sex, and that Skrmetti casts doubt on extending Bostock's Title VII reasoning to Title IX. These are the AG's arguments about future cases. The opinion does not decide the legality of a different school district's policy.

What this means for you

School boards and administrators

The opinion argues against extending Grimm to factually different policies. Its response is limited to the scope of Grimm and the effect of Skrmetti; it does not approve a particular district policy or resolve a future lawsuit.

Students and families

The AG describes Grimm as an as-applied decision involving one student's circumstances and one board's policy. He says those facts matter when assessing the reach of its Equal Protection and Title IX holdings.

Title IX staff and researchers

The opinion explains the AG's view that Skrmetti weakens Grimm's analysis of sex classifications, stereotyping, suspect-class status, and the use of Bostock in a Title IX case. Skrmetti itself concerned a Tennessee law on medical procedures for minors, rather than school bathrooms.

Common questions

Q: Did the AG say every sex-based bathroom policy complies with Title IX?

A: No. The AG concluded that Grimm's holdings do not extend beyond its facts and argued that Skrmetti limits its application. The opinion does not rule on every possible bathroom policy.

Q: What did Grimm decide?

A: The Fourth Circuit held that Gloucester County's bathroom policy violated the Equal Protection Clause and Title IX as applied to Gavin Grimm. The AG's opinion emphasizes the particular factual record behind those holdings.

Q: Did Skrmetti decide a school bathroom case?

A: No. The Supreme Court addressed Tennessee's restrictions on certain medical procedures for minors. The AG argues that its Equal Protection reasoning has consequences for arguments made in school bathroom cases.

Q: Did Grimm address locker rooms?

A: The AG quotes Grimm's statement that Grimm did not need to use the locker rooms and never challenged that part of the school board's policy.

Background and statutory framework

The opinion recounts that Grimm involved an as-applied challenge to a Gloucester County school board policy. The Fourth Circuit found that the policy discriminated against Grimm under the Equal Protection Clause and Title IX. The AG points to the Fourth Circuit's discussion of alternative bathrooms, privacy evidence, and the harms Grimm experienced.

The opinion then describes Skrmetti, which upheld a Tennessee law restricting certain medical procedures for minors against an Equal Protection challenge. The Supreme Court rejected the argument that mere reference to sex requires heightened scrutiny and said it had not held transgender individuals to be a suspect or quasi-suspect class. The AG uses that reasoning to argue that Grimm should remain confined to its facts.

Citations and references

The original opinion discusses Grimm, Skrmetti, and Bostock and cites the Equal Protection Clause, Title IX, and Virginia Code § 2.2-505. The official PDF linked below is the source for its full footnote citations.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2026/26-002-Hamilton-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
Attorney General

January 16, 2026

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Karen Hamilton
Virginia House of Delegates
General Assembly Building
201 North 9th Street, Room 716
Richmond, Virginia 23219

Dear Delegate Hamilton:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the holdings of Grimm v. Gloucester County School Board apply beyond Grimm's facts and whether United States v. Skrmetti limits Grimm's application to future cases.

Response

It is my opinion that Grimm's holdings do not apply beyond Grimm's facts and that Skrmetti limits Grimm's application to future cases.

Background

In 2020, the Court of Appeals for the Fourth Circuit decided Grimm v. Gloucester County School Board, a case involving Gavin Grimm, a biological female who began identifying as transgender while attending Gloucester County High School. After a request to be treated as a boy at school, Grimm initially obtained permission to use the boys' restrooms. The Gloucester County School Board subsequently received numerous complaints and, in response, instituted a new policy that limited use of single-sex bathrooms "to the corresponding biological genders" and provided for "alternative appropriate private facilit[ies]" available to "students with gender identity issues." Grimm sued, alleging that the Board's bathroom policy violated the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, as applied. The Fourth Circuit ruled in Grimm's favor, holding that, as applied to Grimm, the bathroom policy violated the Equal Protection Clause and Title IX.

On the Equal Protection claim, the Fourth Circuit held that heightened scrutiny applied because the bathroom policy rested on sex-based classifications. The Fourth Circuit reasoned that the bathroom policy classified on the basis of sex for two reasons: (1) the policy "cannot be stated without referencing sex"; and (2) Grimm was subject to sex discrimination because the Board's policy relied on sex stereotypes in punishing Grimm for gender non-conformity. Alternatively, the Fourth Circuit held that heightened scrutiny applied because transgender people constitute at least a quasi-suspect class. Applying heightened scrutiny, the court conceded that the government has an important interest in protecting students' privacy. But the court held that the bathroom policy was not substantially related to that important interest because "bodily privacy of cisgender boys using the boys restrooms did not increase when Grimm was banned from those restrooms" and the policy was "marked by misconception and prejudice against Grimm."

On the Title IX claim, the Fourth Circuit had "little difficulty" holding that the bathroom policy excluded Grimm from the boys' restrooms "on the basis of sex" after the Supreme Court's decision in Bostock v. Clayton County, because "the Board could not exclude Grimm from the boys bathrooms without referencing his 'biological gender' under the policy, which it has defined as the sex marker on his birth certificate." And although the court noted that Bostock "does not answer this sex-separated restroom question," it held that the bathroom policy unlawfully discriminated against Grimm because "Grimm was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender."

Five years later, in June 2025, the United States Supreme Court decided United States v. Skrmetti, holding that a Tennessee law banning certain medical procedures for transgender minors did not violate the Equal Protection Clause.

In 2023, Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity (SB 1). SB 1 banned providing puberty blockers and cross-sex hormones to treat gender dysphoria in minors. It also banned certain surgical procedures from being conducted for the purpose of allowing a minor "to identify with, or live as, a purported identity inconsistent with the minor's sex" or addressing "discomfort or distress from a discordance between the minor's sex and asserted identity." Three transgender-identifying minors, their parents, and a doctor sued, arguing that SB 1 violated the Equal Protection Clause. The Supreme Court rejected the argument and upheld the bans.

In holding that SB 1 did not violate the Equal Protection Clause, the Supreme Court ruled, for several reasons, that SB 1 did not classify on any basis that warranted heightened review. First and foremost, SB 1 did not engage in sex-based classifications subject to intermediate scrutiny. In so holding, the Court rejected the plaintiffs' three arguments to the contrary:

• First, the plaintiffs argued that SB 1 classified on the basis of sex because it referenced sex, but the Court explained that it "has never suggested" that "mere reference to sex" is "sufficient to trigger heightened scrutiny."
• Second, the plaintiffs argued that the application of SB 1 turned on sex. The Court responded that SB 1 "does not mask sex-based classifications": the law did not "prohibit conduct for one sex that it permits for the other."
• Third, the plaintiffs argued that SB 1 stereotyped based on sex by enforcing a "government preference that people conform to expectations about their sex." The Court noted that, while "a law that classifies on the basis of sex may fail heightened scrutiny if the classifications rest on impermissible stereotypes," where "a law's classifications are neither covertly nor overtly based on sex," the Court would "not subject the law to heightened review unless it was motivated by an invidious discriminatory purpose."

Next, the Court noted that it "has not previously held that transgender individuals are a suspect or quasi-suspect class." In any event, the Court held that the case did not raise the question "because SB 1 does not classify on the basis of transgender status." SB 1 simply removed one set of diagnoses, including gender dysphoria, from the range of treatable conditions for minors. The Court cited Geduldig v. Aiello, which held that an insurance program that excluded certain pregnancy-related disabilities from coverage did not discriminate on the basis of sex. The program in Geduldig divided potential recipients into two groups (pregnant women and nonpregnant persons); because "women fell into both groups, the program did not discriminate against women as a class." Similarly, SB 1 divided minors into two groups: "those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions." Like in Geduldig, transgender individuals fell into both groups, and so SB 1 did not discriminate against transgender individuals as a class.

Finally, the Court explained that Bostock did not apply to SB 1. The plaintiffs argued that Bostock applied because SB 1 intentionally penalized members of one sex for traits and actions that it tolerated in another. The Court explained, however, that it had not extended Bostock beyond the Title VII context, and that it did not need to consider whether to do so in this case because "changing a minor's sex or transgender status does not alter the application of SB 1." The Court elaborated that "[i]f a transgender boy seeks testosterone to treat his gender dysphoria, SB 1 prevents a healthcare provider from administering it to him." And "[i]f you change his biological sex from female to male, SB 1 would still not permit him the hormones he seeks because he would lack a qualifying diagnosis for the testosterone." Thus, "neither his sex nor his transgender status is the but-for cause of his inability to obtain testosterone."

Because SB 1 did not require heightened scrutiny, the Court applied rational basis review and held that SB 1 "clearly meets this standard." The Court then concluded that SB 1 did not violate the Equal Protection Clause.

Discussion

I. Grimm was an as-applied challenge explicitly limited to its facts

The Fourth Circuit's Equal Protection Clause and Title IX holdings in Grimm are limited to the specific factual scenario presented in that case, restricting their application to factually distinguishable situations. Put simply, Grimm was a narrow decision that applies by its terms only to a particular student and a particular bathroom policy; it does not mandate that all schools must allow all transgender-identifying students to use all facilities.

The Fourth Circuit emphasized at every turn that Grimm's challenge was as-applied, rather than categorical: "[W]e hold that the Board's policy constitutes sex-based discrimination as to Grimm"; "To this day, the Board and Grimm vigorously contest the legality of the bathroom policy as applied to Grimm"; and "[W]e hold that the Board's policy as applied to Grimm is not substantially related to the important objective of protecting student privacy." An as-applied challenge "is one which depends on the identity or circumstances of the plaintiff"; Grimm's holding thus necessarily relies on, and extends no further than, the facts specific to the record in that case.

For instance, Grimm held that the Board's policy created sex-based classifications in part because the Board created single-stall restrooms for Grimm alone and thus the policy appeared more stigmatizing and discriminatory. The Court therefore did not consider a situation involving multiple transgender-identifying students or a situation in which single-stall bathrooms are created for a purpose other than accommodating a specific transgender student. Similarly, the Fourth Circuit's Equal Protection Clause holding relied on record evidence of "misconception and prejudice" against Grimm as an individual. The Fourth Circuit also responded to the Board's only proffered governmental interest, protecting students' privacy, by relying on the factual record unique to that case, including weaknesses in the Board's "deposition witness" testimony and other evidence. Although the court recognized students' privacy interest in their bodies when using the bathroom, the Board's weak evidentiary presentation undermined its argument that its policy was substantially related to its interest. Further, the court never considered other governmental interests.

The Fourth Circuit's Title IX holding was similarly circumscribed to "the Board's application of its restroom policy against Grimm," again relying heavily on the unique factual scenario presented. It held that the Board's policy harmed Grimm because of specific details in the record. For example, the physical locations of the alternative restrooms "were inconvenient" as they were "far from his classes," "caused him to be late for class or away from class for longer than students and teachers perceived as normal," and "when he attended after-school events, he had to be driven away just to use the restroom."

Indeed, on its own terms, the question in Grimm was "limited to how school bathroom policies implicate the rights of transgender students who consistently, persistently, and insistently express a binary gender." This is important for two primary reasons. First, Grimm has little to say about students who have not "consistently, persistently, and insistently express[ed] a binary gender." Courts have recognized a difference between cases involving students who have progressed in a sex transition versus cases "where a student has merely announced that he is a different gender." Second, Grimm expressly applied only to bathrooms, because "[a]lthough the Board's policy similarly applie[d] to locker room facilities, Grimm d[id] not need to use the locker rooms and never challenged that aspect of the policy." The privacy interests that students have in bathrooms and locker rooms are markedly different. It is "not difficult" to understand why schools have long provided different locker rooms and changing facilities for members of each sex; students of all ages have a legitimate interest in "shielding their bodies from the opposite sex." Indeed, "[p]ublic school locker rooms ... are not notable for the privacy they afford."

At bottom, Grimm hinges on the specific factual record that the court had before it, which demonstrated the unique circumstances and experiences of the individual student at the center of Grimm rather than the application of a broad policy to an entire student population. The nature of the sharply divided Fourth Circuit panel's reasoning therefore counsels against casually extending its holdings to factually distinguishable cases.

II. Skrmetti restricts Grimm's application to its facts

Beyond the limited nature of the Grimm opinion itself, the United States Supreme Court's recent decision in Skrmetti calls into question multiple foundational conclusions in Grimm's Equal Protection Clause and Title IX holdings, demonstrating that Grimm should not be extended any further than its facts.

First, Skrmetti expressly rejects the Fourth Circuit's conclusion that "mere reference" to sex is sufficient to trigger heightened scrutiny in the Equal Protection Clause context. Grimm held that, even though the school's bathroom policy required all students to use the bathrooms consistent with their biological sex regardless of the student's sex, the policy classified on the basis of sex because it could not "be stated without referencing sex." But under Skrmetti, a law triggers heightened scrutiny only if the law "prohibit[s] conduct for one sex that it permits for the other." A policy that requires all students to use the bathroom consistent with their sex, regardless of the student's sex, does not "prohibit conduct for one sex that it permit[ted] for the other." To the contrary, every student under such a policy would be subject to the exact same restriction: no student, boy or girl, may use a bathroom inconsistent with that student's sex. Consequently, Skrmetti directly undercuts Grimm's logical premise for applying heightened scrutiny and indicates that school districts that require students to use the bathroom consistent with their sex do not offend the Equal Protection Clause.

Second, Skrmetti contradicts Grimm's sex-stereotyping rationale for applying heightened scrutiny by making clear that the Fourth Circuit misapprehended both what constitutes a stereotype and when courts should conduct a stereotyping analysis. Grimm held that the school board's bathroom policy, which limited use of single-sex bathrooms "to the corresponding biological genders," discriminated on the basis of sex because it relied on sex stereotypes. The Fourth Circuit's reasoning relied on the notion that requiring Grimm to use the bathroom consistent with Grimm's sex "reflect[s] 'stereotypic notions'" and punished Grimm for gender non-conformity. Skrmetti, however, explained that a law "may fail heightened scrutiny if the classifications rest on impermissible stereotypes," but only if that law first "classifies on the basis of sex." Where "a law's classifications are neither covertly nor overtly based on sex," it is not subject "to heightened review unless it was motivated by an invidious discriminatory purpose." Thus, where a policy applies equally to both sexes, as would one requiring all students to use the bathroom consistent with their sex, it does not classify on the basis of sex, and the impermissible-stereotype analysis does not apply.

Third, Skrmetti undermines any argument that a policy requiring students to use bathrooms consistent with their biological sex is a "mere pretext" for invidious discrimination based on gender identity. Applying the logic from Geduldig, Skrmetti made clear that, when a policy divides people into two groups, the question is whether the relevant class of people are part of both groups. A policy requiring students to use bathrooms consistent with their biological sex creates two groups: biological males and biological females. Because in that situation, "like in Skrmetti, both groups include transgender minors," there exists "a lack of identity" between transgender status and the classification.

Fourth, Skrmetti cautions courts against applying Grimm's holding that transgender people are at least a quasi-suspect class. Skrmetti went out of its way to explain that the Court has never "held that transgender individuals are a suspect or quasi-suspect class." Indeed, several Justices outlined their view that transgender identity is unlikely to be a suspect or quasi-suspect class if the Court squarely considers that issue. Moreover, the Court made clear that a case does not raise the question of whether transgender individuals are a suspect class when the law at issue, like SB 1, "does not classify on the basis of transgender status." Skrmetti thus stands for the proposition that courts should refrain from suspect class analysis when policies do not classify on the basis of gender identity, such as policies that classify only on the basis of biological sex.

Fifth, Skrmetti indicates that it was inappropriate for the Fourth Circuit to extend Bostock to Title IX. Despite the fact that Bostock itself declined to "prejudge" whether "sex-segregated bathrooms, locker rooms," or "anything else of the kind" are permissible under Title VII, Grimm assumed that Bostock "guides [the court's] evaluation of claims under Title IX." But Skrmetti made clear that the Supreme Court has never held that "Bostock's reasoning reaches beyond the Title VII context." Indeed, as Justice Thomas explained in his concurrence, there are significant reasons why Bostock does not extend beyond Title VII. One significant reason is that, unlike Title VII, Congress enacted Title IX pursuant to its Spending Clause powers. To comply with the Spending Clause's limitations, Congress must provide the States "with unambiguous notice of the conditions they are assuming when they accept" funding. But when "Congress prohibited discrimination on the basis of 'sex' in education, it meant biological sex, i.e., discrimination between males and females." Because Congress did not intend Title IX and its implementing regulations to encompass gender identity, the plain texts of these provisions do not give clear notice to the States that they require allowing students access to restrooms, locker rooms, and similar facilities based on their self-proclaimed gender identity. It should thus come as no surprise that courts around the country have concluded that the Spending Clause prevents conditioning Title IX funds on prohibiting discrimination based on "gender identity" as opposed to biological sex.

Even if Bostock did apply outside of the Title VII context, Skrmetti shows that Bostock should not apply to a Title IX challenge against a policy requiring students to use bathrooms consistent with their sex. Under Bostock, "an employer who fires a homosexual male employee for being attracted to men while retaining the employee's straight female colleague has discriminated on the basis of sex because it has penalized the male employee for a trait (attraction to men) that it tolerates in the female employee." In Skrmetti, however, Bostock's logic did not apply to Tennessee's law regulating gender-transition procedures for minors because changing a minor's sex would not "automatically change" the operation of that law. The Supreme Court held that Bostock requires sex to be the "but-for" cause of an outcome, not merely a factor "at play." The Supreme Court's clarification of Bostock illustrates that it is inapplicable in cases like Grimm. Such cases do not challenge policies of maintaining separate bathrooms for boys and girls, a classification that is inherently based on sex. Indeed, the plaintiff in Grimm explicitly disclaimed such a challenge. Bostock therefore provides no guidance to sex-separated bathroom policies.

In sum, because the decision in Grimm was based on an as-applied challenge and because Skrmetti subsequently undercut much of Grimm's reasoning, I conclude that the holdings of Grimm do not extend beyond its particular facts.

Conclusion

Accordingly, it is my opinion that Grimm is limited to its facts and that Skrmetti weakens any argument for applying Grimm beyond its facts.

With kindest regards, I am

Very truly yours,

Jason S. Miyares
Attorney General