The Supreme Court will not hear a prominent case on transgender rights, a decision that comes on the heels of the Trump administration’s recent change in guidance on the issue.
The case involves male transgender student Gavin Grimm, who is seeking to use school bathrooms that align with his gender identity. A lawsuit was filed in 2014 by the American Civil Liberties Union and the ACLU of Virginia against the Gloucester County School Board, the high school where Grimm attends, alleging the school board adopts a “discriminatory bathroom policy” that “effectively expels trans students from communal restrooms and requires them to use ‘alternative private’ restroom facilities,” the ACLU said.
The court’s announcement means the case heads back to the Fourth Circuit Court of Appeals to be reconsidered.
Joshua Block, senior staff attorney at the ACLU’s LGBT Project and lead counsel for Grimm, said in a news conference Monday that although the Supreme Court’s decision presents a temporary setback, progress is still possible.
“This is obviously not what we had hoped for today,” Block said. “In our letter to the Supreme Court, we had emphasized that this is really an urgent situation for transgender students around the country and that deferring resolution of the case for another year or two would impose severe harms on them. That said, I think this is justice delayed, not justice denied.”
Grimm and his mother previously notified Gloucester High School administrators of Grimm’s medical treatment for severe gender dysphoria. And after permission from school administrators, Grimm used the boys’ restroom for roughly two months. There were no incidents during that time.
However, the school board adopted a new policy in December 2014 after receiving complaints from parents and residents. The school board’s policy, which passed by a vote of 6-1, denied him access to the boys’ restroom but allowed Grimm to use single-stall unisex restrooms.
Grimm, who also joined Monday’s ACLU press conference, said he is currently using the nurse’s room and avoids the boys’ restroom whenever possible.
“When you are in a position where you are individually singled out in an environment where your school board has sent this direct message to you and your peers and community that there’s something about you that deserves to be segregated from the rest of the student body, it can add an extra level of stress and duress,” Grimm said.
A federal appeals court ruled in favor of Grimm in August 2016, deferring to the Obama administration’s interpretation of Title IX. But in late February, the Trump administration revoked federal guidance that said schools “must not treat a transgender student differently from the way it treats other students of the same gender identity,” which was interpreted as applying not only to transgender students right to use public school restrooms that match their gender identity but also to issues like clothing and prom dates.
Texas Attorney General Ken Paxton, who was at the forefront of the lawsuit challenging the Obama guidance, previously hailed the Trump administration’s rollback on guidelines.
“Our fight over the bathroom directive has always been about former President Obama’s attempt to bypass Congress and rewrite the laws to fit his political agenda for radical social change,” said Paxton, Reuters reported on Feb. 23.
The letter from the Trump administration addressed to public schools offers no new guidance; however, the administration did say it would not rely on the prior interpretation of the law in the future.
“I think that the previous administration was making sure through guidance and regulations to be enforcing those statutes to provide an equal education to everyone, regardless of sex, including trans students,” Block said. “Unfortunately, under this administration it looks like we’re on our own and we’ll have to be protecting ourselves in court. But the law says what the law says and a guidance document by the Trump administration can’t change that.”
There are five other district courts that have ruled in favor of trans kids so far, Block said, and Title IX should speak itself in terms of the relief it provides.
“The overwhelming majority of courts that have addressed this issue have held that excluding boys and girls who are transgender from using the same facilities as other boys and girls violates either Title IX or the equal protection clause,” Block said. “I think that any school board that is interested in figuring out how to comply with the law would be looking at those court decisions.”
Grimm said he remains optimistic in spite of Supreme’s Court refusal to budge.
“It’s disappointing that it’s going to drag this conversation out for longer, which is going to keep trans kids that are in school right now and that are coming into school age in limbo for an extended period of time,” Grimm said. “But, I am still as passionate and happy to be doing this as ever. If it took 10 years, I’d stick with it.”
Block said next steps include an injunction, retrospective nominal damages and a return to the fourth circuit court.