Revisiting Grimm | W. Burlette Carter

Gloucester County School Board v. G.G., No. 16-273 (U.S. Mar. 6, 2017).
Synopsis by Professor W. Burlette Carter
Geo. Wash. L. Rev. On the Docket
Fourth Circuit Opinion | Washington Post | SCOTUSblog

Revisiting Grimm 

In an earlier commentary,1 I discussed the possible future course of Grimm v. Gloucester County School Board.2 At the time, the Supreme Court had vacated the Fourth Circuit’s decision and remanded the case. I predicted then that, down the road, standing and mootness issues would arise. That prediction has come to pass. This commentary follows up on that earlier piece and discusses developments we might expect in the future.

A Review of Proceedings Before the Supreme Court Remanded and Vacated

It is helpful to review the background of Grimm. The case involves a transgender male who was diagnosed with gender dysphoria as a high school student.3 At his school, he4 asserted the right to use sex-separated, multi-use bathrooms designated for males (e.g., according to his gender identity).5 When he first disclosed his condition, Grimm initially agreed to use a single-use unisex bathroom. He later rejected that option as imposing stigma, and, upon his request, the school allowed him to use the boy’s multi-use bathroom. Grimm contends that his usage was not problematic until parents objected and caused the school board to deny him access.6 The American Civil Liberties Union Foundation and the American Civil Liberties Union Foundation of Virginia (hereinafter, collectively, the “ACLU”) were involved at an early stage. When the School Board denied Grimm access, they sued, with Grimm as plaintiff. Early cases listed him as “G.G., by his next friend and mother, Deirdre Grimm.”7

In short, Grimm contended that the word “sex” in Title IX, includes gender identity. His reasoning was that discrimination based on gender identity is, by its nature, sex stereotyping under Price Waterhouse v. Hopkins.8 Even if Title IX did not cover gender identity, he claimed, the right to have his gender identity recognized as his “sex” is protected under the Equal Protection Clause of the Fourteenth Amendment.

On September 17, 2015, the district court denied Grimm’s motion for a preliminary injunction and granted the School Board’s motion to dismiss. For reasons not entirely clear, it substantively discussed only the Title IX claim in the opinion.9 On appeal, the Fourth Circuit reversed. It determined that the district court should have deferred to a then Department of Justice and Department of Education (“DOJ/DOEd”) joint interpretation that had been issued after the litigation commenced (the “joint interpretation”). That joint interpretation stated that Title IX required schools to equate sex with gender identity, including for bathroom access.10 On remand, the district court issued the preliminary injunction.

The Fourth Circuit denied the School Board’s request for a stay pending appeal. The School Board then sought an emergency stay from, and review by, the U.S. Supreme Court. The Court granted the stay and granted certiorari on the Title IX question.11 The Court set oral argument for March 28, 2017.

About a week after the Court granted certiorari, Donald Trump was elected President of the United States. On February 22, the DOJ and DOEd (under new Trump Administration appointees) rescinded the joint interpretation and abandoned all legal efforts to enforce it.12 On March 6, the Supreme Court vacated the Fourth Circuit’s decision (which had relied on those interpretations). It remanded the case back to that circuit for further proceedings.13

Proceedings after the Supreme Court’s Order

Much has happened since the Supreme Court’s remand. The Fourth Circuit denied the ACLU’s motion for expedited briefing and argument.14 Argument then was to be heard at its September sitting. In its merits brief, as expected, the ACLU argued that the word “sex” in Title IX includes gender identity.15 In its responsive brief, the School Board argued to the contrary but also raised, for the first time, a claim that the case would become moot upon Grimm’s graduation on June 10.16 The Board also noted that mootness raises jurisdictional issues. In reply, the ACLU argued that Grimm’s claims were not moot because he had sufficient interest to assert claims as an alumnus who would, on occasion, attend school events.17

The term “jurisdiction” got the attention of the Fourth Circuit. On August 2, the Court remanded the case to the district court, with instructions to consider the mootness question. It noted that the parties had submitted “unsupported assertions regarding Grimm’s continued connection to his high school and the applicability of the School Board’s policy.”18 It stated that discovery was needed to ensure that Grimm continued to have standing.19 The ACLU then stipulated to end its appeal and to file an amended complaint.

What’s in the New Complaint—and Why?

My prior commentary was based on the assumption that Grimm would graduate and (like most of us), have no desire to return to his high school. After raising the question of his standing, I suggested that the case might be saved by basing his claims on injuries caused by prior denials when Grimm was a student. The new complaint (“Grimm II”) is consistent with this approach. But the ACLU has gone further. They argue that Grimm also has Title IX and Equal Protection claims as an alumnus who might visit the school. On these theories, they seek a permanent injunction and nominal damages.20

Say what? First, let us consider the Title IX claim. By its plain language, Title IX says “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”21 The ACLU appears to be asking the court to read the word “person” within Title IX broadly, beyond students and employees, and the term “educational program or activity” to include a wide range activities that might bring an alumnus (or anyone) to campus.22

A few courts addressing the question of breadth have held that Title IX plaintiffs must also be intended beneficiaries of the federal funds.23 Such interpretations might exclude those entering grounds for noneducational purposes such as viewing a school play or giving a speech. Interestingly, though, language appearing on the website of the DOEd Office for Civil Rights might be read to suggest that parents are protected in their own right. It appears to be carried over from the Obama Administration.24

As for Grimm’s Equal Protection claim, there are older cases, especially concerning the First Amendment’s Establishment Clause, finding that a continuing injury resulting from visits to an institution or an exposure to a harm can confer standing. For example, the Sixth Circuit found that an alumnus who might visit his former school had standing to challenge the school’s hanging of a portrait of Jesus Christ in the hallway there, even though he had graduated.25 In other contexts, some courts have described the needed injury for standing as “direct and unwelcome contact” with an offending practice.26 Arguably, however, the unique educational context of Title IX and the remedial target of the statute (e.g., education) might distinguish these cases. Moreover, in those cases, the Supreme Court had long ago ruled that the posting of the Ten Commandments in a public classroom violated the Establishment Clause.27 In Grimm II, the waters of substantive law are considerably muddier.

As I noted in my prior commentary, the procedural context of the Grimm I appeal may have raised another concern that led to the ACLU’s amendment decision. Grimm I was an appeal of a preliminary injunction—an interlocutory order. It was appealable only because a statute allows an appeal.28 Although circuit standards vary somewhat, for a preliminary injunction in the Fourth Circuit, “‘[p]laintiffs must demonstrate that (1) they are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest.’”29 Preliminary injunction orders tend to occur very early in a proceeding while permanent injunction orders often occur only after a substantial record has been made. A preliminary injunction request is, therefore, a way to rocket a case upward to appellate levels at an early stage.

But after graduation, Grimm could no longer claim irreparable harm as a student, and showing that prong and the other two factors would also be more difficult. An alumnus will visit a school less frequently, that presence is not compelled, and the school could likely properly assign single-use unisex bathrooms for all visitor use. Thus, I suggested that, upon graduation, Grimm might lose standing to pursue the very preliminary injunction that initially gave jurisdiction over the appeal, although, arguably, he continued to have a substantive claim for the past deprivations.30 Perhaps, rather than spend resources fighting through that procedural morass, the ACLU voluntarily decided to start over with a clean complaint that asserted alumnus claims. So too, the Fourth Circuit remand order offered the School Board an early deposition of Grimm, without much benefit to his side. That deposition might have focused on his role as an advocate and spokesperson at events, perhaps arranged by advocacy groups (and maybe, even arranged by the ACLU). At press time, while a college fund had been launched for him, Grimm had not yet made any plans for college and had been quoted as saying he wanted to leave the Gloucester area.31

Grimm I and II must be appreciated in light of larger battles—the significance of having courts declare that the term “sex” includes both “gender identity” and sexual orientation in federal statutes. Here, cases brought under Title VII are key. Two cases—Evans v. Georgia Regional Hospital32 and Hively v. Ivy Technical Community College33—have resulted in a circuit split.34 On September 7, Lambda Legal Defense and Education Fund, Inc. filed a petition for certiorari in Evans.35 A third case, Zarda v. Altitude Express36, was argued before the Second Circuit, en banc, on September 26.37 Any wins in the context of Title IX and Title VII may be later argued to apply to references to “sex” across the board, thus eliminating distinctions that some, like the School Board in Grimm, deem important. During the Obama Administration, DOJ and the Equal Employment Opportunity Commission (“EEOC”) supported plaintiffs in the Evans and Hively litigation, arguing that sexual orientation discrimination and gender identity discrimination, when they occur, are always discrimination based on “sex.” The EEOC, whose majority are currently Obama appointees, adopted the same view in Zarda. However, the DOJ, under Trump, has argued that the statutory language and the legislative history are unambiguous and do not include sexual orientation or gender identity discrimination. They claim that plaintiff’s remedy lies in legislative action.

Tactical reasons might explain advocates’ emphasis on statutory arguments. First, the statutes already exist and the “stereotypes” prohibition of Price Waterhouse has been held to apply to men as well as women. But second, sex discrimination has long been subject to “heightened scrutiny” under the Equal Protection Clause, and advocates still seek “heightened scrutiny” as a goal. In Obergefell v. Hodges38 and related cases, advocates sought heightened scrutiny primarily by making comparisons between denials of marriage based on sexual orientation and denials based on race discrimination (which requires strict scrutiny).39 But the Supreme Court grounded its decision in the Due Process Clause, as buttressed by Equal Protection, and did not discuss levels of scrutiny.39 Defining gender identity discrimination as sex discrimination would resolve that in advocates’ favor.

Advocates may hope that constitutional claims not asserted in the Title VII cases, end up being “bootstrapped” into the statutory claim. Note that in the Evans certiorari petition, they seek to rely upon Obergefell in arguing that it would be unfair if Title VII did not include sexual orientation. Of course, when the parties have clearly decided not to plead an apparent constitutional claim, as in the Title VII cases, lower courts won’t normally address it, and amici would not have notice of the need to brief it. A question might be raised, then, as to whether the Supreme Court should decide the issues on purely statutory grounds or whether it should allow additional briefing (including amici) before addressing any constitutional dimensions.

It may be that advocates also hope that defining “sex” in federal statutes to include gender identity and sexual orientation might flow over into family law cases and undercut state reliance on biology as a legal standard in defining family relationships and rights related to families. For example, some advocates have argued that, in all cases, time spent with a child in a “parental” role, not biology, should establish parent-child relationships as well as rights to custody or visitation. Such cases often arise in a context in which same-sex couples separate, after having both performed duties with respect to a child, with only one being biologically or adoptively a parent.

Ironically, one complication Grimm previously faced was eliminated by the rescission of the DOJ/DOEd joint guidance. In support of the School Board’s petition for certiorari, some legal scholars had called for the reversal of the Auer40 doctrine of judicial deference to administrative decisions.41 (Indeed, in Grimm I, the administrative determination was issued through an unpublished letter, without prior notice or opportunity for comment, as some argued, was required by the Administrative Procedure Act.41) But the joint guidance is no longer in effect.

Upon Grimm’s request, Grimm II has been reassigned to Judge Arenda Wright Allen.42 At press time, the School Board had just moved to dismiss Grimm’s Amended Complaint.

Although the Evans Title VII certiorari petition is now before them, I predict that the Supreme Court will delay ruling until the end of the term. That approach will allow more circuits to consider these issues. In the meantime, advocacy groups will chart their strategies. Does one send the Title VII sexual orientation cases up first and then later bring the Title IX gender identity ones? Or is it best to bring all of them up together? Those who argue that the relevant statutes don’t include gender identity or sexual orientation and who believe that sex should continue to be a legal basis for distinction in at least some cases also will be charting their courses. Notably, the School Board has argued that a redefinition of “sex” would gut the remedial purposes of Title IX. Whatever the outcome below in Grimm, the chances are excellent that the Supreme Court be asked to tell us the meaning of sex in the next term.

W. Burlette Carter is a historian whose scholarship and scholarship in progress covers a wide variety of historical topics including early American legal treatment of women and minority groups (including LGBTQIA communities), early legal education, and sports history. She has taught Civil Procedure, Evidence, Trusts and Estates, Sports and the Law, and Women, Money, and the Law. She filed a historical brief in support of neither side, and on her own behalf, in Obergefell v. Hodges.

  1. W. Burlette Carter, Response, Gloucester County School Board v. G.G.: Trump Withdraws Title IX Guidance; Supreme Court Pauses. What Now?, Geo. Wash. L. Rev. On the Docket (Mar. 22, 2017),
  2. G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd. 132 F. Supp. 3d 736 (E.D. Va. 2015), rev’d 822 F.3d 709 (4th Cir. 2016), cert. granted in part, 137 S. Ct. 369 (2016), vacated & remanded, No. 16-273 (U.S. Mar. 6, 2017), remanded, No. 15-2056 (4th Cir. Aug. 2, 2017) [hereinafter Grimm I].
  3. Gender dysphoria occurs when one’s “sex,” as designated at one’s birth, does not match one’s deeply held internal sense of gender identity, so much so that one feels compelled to transition publicly to that identity. Not all transgender persons experience gender dysphoria, although many do. Cf. GLAAD, Debunking the “Bathroom Bill” Myth, Apr. 2017, at 12 (defining gender identity as “[a] person’s internal, deeply held sense of their identity”),
  4. The author uses Grimm’s preferred name and preferred pronoun when speaking specifically about him because names and titles are uniquely personal. That usage is not meant to indicate how the author believes courts should rule on these or related issues, or to dictate how others should approach such questions.
  5. By “multi-use” the author means bathrooms designed to be used by more than one person at a time.
  6. One should note, however, that if students complained, the school would probably not be able to disclose the details due to student privacy restrictions.
  7. After Grimm turned eighteen and legally changed his name to “Gavin Grimm,” he began appearing in captions by that name. There is some suggestion that the “G.G” was required by the district court judge. See also infra note 44.
  8. 490 U.S. 228 (1989) (holding, in the context of a female plaintiff, that sex stereotyping is sex discrimination).
  9. See Grimm I, 132 F. Supp. 3d 736 (E.D. Va. 2015).
  10. G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated, No. 16-273 (U.S. Mar. 6, 2017). For the joint interpretation, see Letter from Catherine Lhamon, Assistant Secretary for Civil Rights, U.S. Department of Education and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice to Colleagues (May 13, 2016),
  11. See Gloucester Cty. Sch. Bd v. G.G. ex rel Grimm, 137 S. Ct. 369 (2016). The Court did not grant certiorari on whether deference to the Administration was required under the Auer doctrine, discussed infra notes 40–42 and accompanying text.
  12. See Letter from Sandra Battle, Acting Assistant Secretary for Civil Rights, U.S. Department of Education and T.E. Wheeler, II, Acting Assistant Attorney General for Civil Rights, U.S. Department of Justice to Colleagues (Feb. 22, 2017), The Battle letter also withdrew an earlier, similar interpretation by the Department Of Education’s Office for Civil Rights. See Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights to Emily T. Prince, Attorney (Jan. 7, 2015) (on file with author).
  13. See Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Mar. 6, 2017).
  14. The record is unclear but it appears the court orally indicated its intention to deny this request and then the parties agreed to vacate the preliminary injunction. G.G. v. Gloucester Cty. Sch. Bd., Case No. 16-1733, (4th Cir. Apr. 18, 2017) (order granting unopposed motion to vacate preliminary injunction) [hereinafter Grimm II]; see also Grimm Mot. Expedited Briefing and Arg. at 4, Grimm II, No. 15-2056 (4th Cir. Mar. 8, 2017).
  15. See Grimm Suppl. Br., Grimm II, No. 15-2056 (4th Cir. May 8, 2017).
  16. See Gloucester Cty. Sch. Bd. Suppl. Br. Grimm II, No. 15-2056, (4th Cir. May 8, 2017). In its prior motion for expedited treatment, discussed supra note 14, the ACLU had obliquely hinted that Grimm’s graduation might be legally problematic. They said: “After graduation, he will still be subject to the Board’s policy for purposes of attending alumni events or other activities on school grounds.” Grimm Mot. Expedited Briefing and Arg. at 4, Grimm II, No. 15-2056 (4th Cir. Mar. 8, 2017). The School Board did not then address the standing/mootness issue. See Gloucester Cty. Sch. Bd. Partial Opp’n to Mot. Expedited Briefing and Arg., Grimm II, No. 15-2056 (4th Cir. Mar. 14, 2017).
  17. See Gloucester Cty. Sch. Bd. Suppl. Reply Br. at 4, Grimm II, No. 15-2056, (4th Cir. 2017); see also Gloucester Cty. Sch. Bd. Suppl. Br. supra note 16, at 18–20. For the response, see Grimm Suppl. Br. supra note 16, at 19; Grimm Reply Suppl. Br. at 4, Grimm II, No. 15-2056, (4th Cir. Jun. 2, 2017).
  18. Grimm II, No. 15-2056 (4th Cir. Aug. 2, 2017) (order remanding the case for the limited purpose of resolving whether the case has become moot).
  19. See id. The Supreme Court has held that there are three prongs of standing:

    First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‛hypothetical’,” . . . Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.” . . . Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1991) (internal citations omitted).

  20. See Am. Compl., No. 15-0054 (E.D. Va. Aug. 11, 2017).
  21. 20 U.S. C. § 1681(a) (2012).
  22. See Am. Compl., No. 15-0054; see also 20 U.S.C. § 1681(a).
  23. Compare Armstrong v. James Madison Univ., No. 5:16-cv-00053, 2017 LEXIS 25014 (W.D. Va. Feb. 23, 2017) (dismissing pro se complaint of graduate using alma mater’s gym facilities on other grounds but declining to rule on question), with Lopez v. San Luis Valley Bd. of Coop. Educ. Servs., 977 F. Supp. 1422 (D. Colo. 1997) (principal claiming she was forced to resign due to seizures caused by behavior of colleague cannot assert Title IX claim because her claim was not related to a specific educational program, but leaving open whether she would have standing if it were so).
  24. The Department of Education’s Office for Civil Rights’ page states that Title IX not only protects students but also “parents and guardians, students and employees.” Dep’t of Educ., Sex Discrimination, (last visited Sept. 15, 2017). The origins of the language are unclear. Oddly, the Wayback Machine does not indicate page captures prior to January 19, 2017, the day before the Trump inauguration. Google searches for prior decades reveal pages that reflect the much later January 24, 2017 modifications. Compare Phillips v. Anderson Cty. Bd. of Educ., No. 3:06-CV-35, 2006 U.S. Dist. LEXIS 92120 (E.D. Tenn. Dec. 19, 2006) (father’s interest in case ceases once child is adult, and he cannot claim consortium interest under Title IX), with Peterson v. Ne. Local Sch. Dist, No. 3:13cv00187, 2014 U.S. Dist. LEXIS 68992 (S.D. Ohio May 20, 2014) (no independent parental interest under Title IX because parents are not the intended beneficiaries of federal funding).
  25. See, e.g., Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679 (6th Cir. 1994) (holding that alumnus had standing to challenge display of portraits of Jesus in public school under the Establishment Clause).
  26. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 873 F. Supp. 2d 850, 858 (holding that plaintiff had standing to challenge nativity scene because he came into direct and unwelcomed contact with the display) (citing Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2001) (holding that civil liberties association had standing to challenge monument displaying Ten Commandments in statehouse grounds because they would experience direct and unwelcomed contact)).
  27. Stone v. Graham, 449 U.S. 39 (1980).
  28. 28 U.S.C. § 1292 (2012) (conferring appellate jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunction, or refusing to dissolve or modify injunctions”).
  29. Grimm I, 132 F. Supp. 3d. 736, 747 (E.D. Va. 2015) (citing League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (internal quotation marks omitted)); see also Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
  30. It is also doubtful Grimm could claim the case met the exception of cases with issues capable of repetition, but evading review. Grimm is only one of numerous cases that have challenged school bathroom sex separation rules, and some have found in plaintiffs’ favor. See, e.g., Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017) (right to bathroom consistent with gender identity protected under Title IX and Equal Protection); Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. 858 F.3d 1034, 1054 (7th Cir. 2017) (granting Title IX and Equal Protection preliminary injunction, reversing lower court); cf. DeFunis v. Odegaard, 416 U.S. 312, 319 (1974) (holding that case is moot because Supreme Court decision likely to come after student’s graduation and “just because this particular case did not reach the Court until the eve of the petitioner’s graduation from law school, it hardly follows that the issue he raises will in the future evade review”).
  31. See, e.g., Kate Mishkin, Family Friends Launch Go Fund Me Page for Gavin Grimm, Daily Press, Sept. 12, 2017,
  32. 850 F.3d 1248 (11th Cir. 2015).
  33. 853 F.3d 339 (7th Cir. 2017).
  34. Compare Evans, 850 F.3d. at 1248, petition for certiorari filed (U.S. Sept. 7, 2017) (holding that circuit precedent does not recognize an action for sexual orientation discrimination under Title VII, and, while an action for gender nonconformity does exist under Title IX, plaintiff did not sufficiently plead the claim), with Hively, 853 F.3d at 339 (holding that “sex” in Title VII does include sexual orientation).
  35. See Petition for Writ of Certiorari, Evans, No. 17-___ (Sept. 7, 2017).
  36. 855 F.3d 76 (2d Cir. 2017).
  37. Zarda, 855 F.3d at 76 (holding that “sex” does not include sexual orientation under Title VII), reh’g en banc granted, No. 15-3775 (2d Cir. 2017).
  38. 125 S. Ct. 2071 (2015).
  39. This author addressed the comparison between racial denials and denials based on sexual orientation as well as other issues in an amicus brief in Obergefell. See Br. of Amicus Curiae Professor W. Burlette Carter in Support of Neither Party, Obergefell, 125 S. Ct. 2071 (2015).
  40. 519 U.S. 452 (1997).
  41. See Obergefell, 135 S. Ct. at 2584; cf. Loving v. Virginia, 388 U.S. 1 (1967) (striking down bans on interracial marriage on equal protection and due process as independent grounds).
  42. See Auer, 519 U.S. 452 (1997); see also Br. of the Cato Inst. & Professors Jonathan H. Adler, Richard A. Epstein, and Michael McConnell, as Amici Curiae, in Supp. of Pet’r, Grimm I, No. 16-273 (4th Cir. 2016) (arguing, in support of school district, for certiorari to allow argument on overturning Auer, but taking no position on the underlying statutory interpretation question). In granting certiorari, the Supreme Court avoided Auer and limited the focus to Title IX.
  43. See 5 U.S.C. § 553(b)(3) (2012) (requiring notice and comment before issuance of regulations).
  44. See Grimm Br. at 52–58, Grimm I, No. 15-2056 (4th Cir. 2015) (citing, inter alia, that the previous judge’s hearing comments revealed preexisting views about state of medical science. The previous judge referred to gender dysphoria as a mental illness and questioned lawyers’ decision to initially disclose the full name of the minor as “Gavin Grimm,” and required “G.G.”).

Recommended Citation W. Burlette Carter, Synopsis, Revisiting Grimm, Geo. Wash. L. Rev. On the Docket (October 9, 2017),