Although they didn’t have to do so, the Supreme Court punted on transgender rights today, handing the Trump administration its first victory at the high court.
On March 28, the Court was set to hear oral arguments in the case of G.G. v. Gloucester County School Board, in which a transgender student, Gavin Grimm, challenged a school board’s banning him from using the boys’ restroom. Today, however, the Court sent the case back down to the Fourth Circuit Court of Appeals.
That’s because the original case was, in part, about a conflict between the school board’s policy and the Obama administration’s “guidance letter” on transgender students. That letter was overturned two weeks ago by the Trump Justice and Education departments. With the guidance letter no longer on the table, the Court remanded the case for further consideration.
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The result is peculiar. For now, Gavin has actually won, since the Fourth Circuit ruled in his favor, letting him use the bathroom of his gender. But because the Supreme Court issued a stay on its order, Gavin actually loses. Per the stay, the school board’s rule is still in effect, and Gavin must use the single-stall restroom in a converted janitors closet that the school has provided for him.
More importantly, every other transgender student in the country lost as well. Indeed, even though the Trump administration was not formally a party to the lawsuit, it’s because of their policy shift that the Court has stepped back. This remand is thus a major victory for anti-transgender advocates on the Christian Right.
The Supreme Court had agreed to review two issues: first, how to interpret the guidance letter, and second, what the underlying law, Title IX, actually requires. The ACLU, Gavin’s lawyers in the case, had hoped the Supreme Court would still reach the second question even though the first one was now moot.
But as one might expect from the “judicial minimalism” of the Roberts Court, the Court declined to do so. This allows the Court to dodge the issue for now, but creates uncertainty across the country as there’s no definitive interpretation of what Title IX requires, or whether it applies to transgender people at all.
Interestingly, the Trump letter doesn’t take a position on that either: it only argued that states’ rights need to be respected (a problematic claim, given that Title IX was passed to supersede state rules) and that it is reviewing the issue. Of course, it’s hard to see Jeff Sessions’ Justice Department protecting transgender equality, but that’s mere speculation.
Thus, none of the three branches of the federal government now has a position on whether Title IX, which prohibits discrimination based on sex, cover discrimination against transgender students.
From the perspective of the Roberts Court, this result makes sense. Judicial minimalism means deciding what you need to decide, and not more than that. It’s become a distinguishing feature of the Court’s jurisprudence of late, and has led to both conservative and progressive decisions.
In this case, the fact is that the two questions the Court was looking at—the law, and the administration’s interpretation of it—were always intertwined. When the Fourth Circuit reached its decision, it didn’t review Title IX from scratch (de novo in legal parlance). It did so on the basis of the Obama administration’s interpretation of it. With that interpretation formally withdrawn—and with a significant level of public attention and outcry—it makes sense.
On the other hand, a different Supreme Court might have resolved this issue, saving millions of dollars in litigation and sparing schools and trans kids alike years of uncertainty. Legally it would have been easy to do so. But jurisprudentially, it’s not how the Roberts Court rolls.
What happens now?
First, Gavin’s case is now back at the Fourth Circuit, which will have to reexamine it in light of the Trump administration’s new policy. Because that policy is really a non-policy, the Fourth Circuit may do what the Supreme Court chose not to do: interpret Title IX de novo.
More likely, it will request that the Justice and/or Education Departments weigh in with their own understanding(s) of whether Title IX applies to transgender students – and if it does, whether it mandates that they be allowed to use gender-appropriate restrooms, or whether the separate-bathroom option is satisfactory.
That will, of course, take several months at least. Gavin, meanwhile, is set to graduate in June, though his case may yet plod onward, since he’s alleging damages from the school board’s policy.
More broadly, other cases will now wend their way up through the courts. So far, six district courts have taken up the issue, and five ruled the way the Fourth Circuit did. (Two interpreted Title IX on their own, three deferred to the executive branch.) Five of those were before the new policy took effect, however. We should expect to see multiple lawsuits wend their way through multiple court systems.
The ACLU, for its part, remains defiant. Joshua Block, senior staff attorney at the ACLU’s LGBT Project and lead counsel for Grimm, said in a statement, “Nothing about today’s action changes the meaning of the law. Title IX and the Constitution protect Gavin and other transgender students from discrimination.”
One final possibility is that while the executive and judicial branches wrestle with Title IX, Congress may take action to settle the matter once and for all. That would surely be bad news for transgender people, since the Republican party has stymied multiple attempts to protect trans people in the past (notably in employment contexts) and would surely bow to the evidence-free, hysteria-driven bathroom panic now.
Indeed, the worst case scenario for trans people would also be the simplest: Congress simply amending Title IX (and, while they’re at it, other laws as well) to specifically exclude transgender people from protection. That would wipe away all the lawsuits, and the need for administration guidance, in one fell swoop.
That would also, of course, be a disaster for trans kids, who had been peeing in peace for years before the Christian Right decided to make an issue out of it. Indeed, Gavin’s own school allowed him access to the boys’ room, and no one complained. It was the school board, not the school itself, that passed the policy on its own. The entire bathroom panic is made up.
But while the panic may be fictive, its effects are quite real. Gavin will soon graduate, but a new generation of trans kids face ostracism and stigma by school officials who make them into pariahs. Such actions lie on a continuum of marginalization with jokes and pronoun-screwups at one end, the seven transgender women already murdered in 2017 at the other. Sometimes, alternative facts can kill.
