[UPDATED 3:15 p.m. ] The U.S. Supreme Court on Monday returned the major case on transgender rights in schools to a lower court for fresh consideration of the Trump administration’s withdrawal of Obama-era guidance that federal anti-discrimination law protected gender identity.
In a one-sentence order without recorded dissent in Gloucester County School Board v. G.G. (Case No. 16-273), the justices vacated the ruling of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that had deferred to the Obama administration’s interpretation of Title IX.
The action is a defeat in the short term for Gavin Grimm, the female-born student who now identifies as male, who was barred by a Gloucester County, Va., school district policy from using the restroom that aligns with his gender identity.
“It’s disappointing,” Grimm said in a conference call with reporters. “It’s going to keep trans kids in school, and those just coming into school, in limbo for an extended period of time.”
The court’s action also means the justices won’t be resolving in the near term a debate over transgender rights that has roiled the nation’s schools. But the issue could return to the high court within a year or two as other cases address whether Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools, may be interpreted today to cover gender identity.
After the Trump administration last month withdrew the Obama-era guidance on transgender rights, both parties urged the court to proceed with the case and decide the underlying question of whether Title IX covers gender identity, although the school board urged a delay to allow the Trump administration to fully formulate its position and express its views in the case.
The court opted instead to send the case back to the 4th Circuit.
“This is justice delayed, not justice denied,” Joshua A. Block, Grimm’s lawyer with the American Civil Liberties Union, said in the same conference call. He stressed that Grimm’s case will go forward based on the Title IX claim as well as a 14th Amendment equal-protection claim that was part of his lawsuit but was not ruled on by either the district court or the appeals court below.
“We’re not disheartened in any way about the decision to remand the case to the 4th Circuit,” Block said. He also said that despite some ambiguity about whether a lower-court injunction in Grimm’s favor (which was blocked by the Supreme Court last summer) was technically back in effect, the ACLU would not focus on that injunction but could still win a new order that might allow Grimm to use the boys’ restroom before he graduates this June.
The Gloucester County School Board issued a statement that says, “On remand to the lower courts, the board looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law.”
Kerri Kupec, a lawyer with the Alliance Defending Freedom, a Scottsdale, Ariz.-based group that filed a friend-of-the-court brief in support of the Gloucester County school board, said in a statement that in light of the Trump administration’s action, “It only makes sense for the Supreme Court to vacate the 4th Circuit’s earlier decision and instruct it to reconsider this case. The 4th Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers, and restrooms.”
But the National Association of Secondary School Principals, which had joined with other education groups in a friend-of-the-court brief in support of Grimm, said it was disappointed the Supreme Court would not soon settle an issue of civil rights.
“We’re not talking about what content to teach in English class, which is the domain of the states,” the NASSP statement said. “This is about asserting the rights in schools of a severely marginalized group of kids.”
Grimm said he was in school Monday when he began to receive text messages about the high court’s action.
“I was as prepared as I could be for that possibility,” he said.
Barred from the boys’ restrooms at his school, Grimm said he has been trying to avoid having to use a restroom at all while there, or using the restroom in the nurse’s office. Fellow students and his teachers have mostly been positive “to my face,” though he acknowledge there have been some “passive-aggressive” responses behind his back.
Grimm said his thinking about the restroom-access battle has evolved with recent comments by the transgender actor Laverne Cox, a star of “Orange is the New Black” on Netflix and the new series “Doubt” on CBS. Cox has said in a number of recent media appearances that bathroom access for transgender people is not just about restrooms but about equal treatment and the right of transgender individuals to go about their lives.
“This is about whether we can exist in public or not,” Grimm said.
A version of this news article first appeared in The School Law Blog.