SCOTUS just punted on the trans 'bathroom bill' case. What now?


The Supreme Court on Monday stymied the hopes of trans students and their advocates around the country when it decided to send a landmark trans rights case, Gloucester County School Board v. Gavin Grimm, back to the Fourth Circuit Court of Appeals.

The court wrote in a one-paragraph decision that the case should be re-adjudicated by the Fourth Circuit in light of the Trump administration rescinding guidances that called on school districts to allow trans students to access bathrooms that align with their gender identities.

The Fourth Circuit initially ruled in favor of Gavin Grimm, a transgender student from Virginia, in a decision that referred extensively to the Obama administration’s guidances that explicitly said Title IX protections against sex-based discrimination extend to gender identity.

We spoke to Demoya Gordon, Staff and Transgender Rights Project Attorney at Lambda Legal, a non-profit legal LGBTQ rights group, about what comes next for Gavin Grimm and trans rights in light of this decision.

The following interview has been edited and condensed for clarity.

What was the court’s reasoning for deciding to send the case back?

The court didn’t provide a whole lot of reasoning, but our general understanding in the legal community is the court has viewed the previous guidance that the Obama administration issued regarding how trans students should be provided access to single-sex spaces as being really integral to at least one of the questions that was before it. So rather than doing what both sides had asked it to do, which was to go ahead and decide the question of whether Title IX protects transgender students in publicly funded schools, the court determined that the rescission of the guidance was serious enough of a development for it to ask the Fourth Circuit to revisit its opinion. That’s because the Fourth Circuit’s opinion had been centrally based on how the previous administration had interpreted those regulations.

Does the lower court have an option of whether or not to review the case, or is it forced to re-examine it?

They have to do this. The Supreme Court has told them they have to do this.

Does his case have less of a chance of succeeding in the lower court now?

I don’t think so. The Fourth Circuit got it right before and we’re confident that they will rule in favor of Gavin again. The law has not changed in any way, shape, or form. The law continues to protect transgender students against discrimination in all aspects of student life. We’ve seen court after court, ever since the Fourth Circuit made its first decision, that have agreed with that analysis and have granted protections to transgender students so that they can access bathrooms and other spaces in accordance with who they are.

So the administration rescinding the guidance has really changed the course of this case at this point. Are you concerned about what other moves could come from federal agencies under Trump, and what impact they could have on other cases?

We’re not sure what this administration might do. So far all they’ve done is they’ve withdrawn good and helpful guidance that the previous administration had issued. They haven’t affirmatively stated one way or the other how they think schools should address the issue of access to bathrooms and other single-sex spaces. Certainly by withdrawing the guidance, I think the effect of that will be unfortunately at least in some cases to confuse the issue, and to cause schools who were perhaps doing the right thing and following the law to question whether they should continue to respect transgender students’ identity.

Are there other opportunities this year for SCOTUS to actually weigh in on trans rights?

I don’t think they’ve been asked to hear any other cases on this specific issue yet but there are several cases pending right now on this issue, so it’s only a matter of time until this comes back up to he Supreme Court again. Their decision to vacate and remand the case back to the Fourth Circuit is a delay to that but ultimately this question will be placed before the Supreme Court. And ultimately we are optimistic that the answer we get from them will be the right one. Because nothing that has happened in the last several months has changed the law in any way. The Constitution continues to protect transgender students in all aspects of student life.

Will this have any affect on the other ongoing anti-discrimination cases around the country right now?

Several of those cases had been stayed or halted pending, waiting to see what the Supreme Court would do, so I guess those cases might start back up again. It’s kind of hard to tell what individual judges and parties will seek to happen but there were some cases that were effectively halted pending the Supreme Court’s decision on this. We might see some of those cases start up again or they might still wait to see what happens with Gavin’s case.

If they hear another case after Neil Gorsuch is confirmed, does that present more of a challenge to trans rights being affirmed?

The law remains what the law is, so I’m confident that the Supreme Court, even after Gorsuch comes on, will hopefully do the right thing. That they’ll take a look at the law, at the case law that’s developed, will take a look at the language of Title IX and at equal protection jurisprudence and will come to the right decision. I think we’re pretty confident that that will be the case regardless of the composition of the court.

Gavin Grimm is a senior in high school now. Does this move from the court immediately change his situation at school this year?

I think the consensus is that it’s likely the Supreme Court order that it issued does away with both the Fourth Circuit order and the preliminary injunction so that likely means the Fourth Circuit would have to rule again for him to be able to use the bathroom in accordance with his gender identity.

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