Supreme Court sends transgender bathroom case back to lower court

Supreme Court sends transgender bathroom case back to lower court

By Gary Gately   
A same-sex marriage supporter waves an LGBTQ rights rainbow flag outside the Supreme Court in 2015. (Photo courtesy of Ted Eytan)

WASHINGTON – The U.S. Supreme Court on Monday sent transgender Virginia student Gavin Grimm’s battle to use the boys’ bathroom at his high school back to a lower court for review.

In a one-sentence order, without dissent, the high court vacated a decision by the 4th U.S. Circuit Court of Appeals in favor of Gavin, a 17-year-old senior at Gloucester County High School in rural, coastal Virginia. Gavin, born a girl, now identifies as a boy.

The order cited the need for the lower court’s “further consideration in light of” the Trump administration last month rescinding an Obama administration directive on transgender students. The directive told educators nationwide that denying transgender students the right to use a bathroom matching their gender identity violated Title IX of the Education Amendments of 1972.

Trump’s Justice and Education departments told educators that administration officials would “further and more completely consider the legal issues involved” before deciding how to proceed on transgender bathroom use. The letter said the administration would weigh the role of states and individual school districts in shaping education policy.

Both sides had urged the Supreme Court to hear the divisive transgender rights case.

The Gloucester County School Board said in a statement Monday that it “looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law.”

And conservative groups praised the Supreme Court’s move.

“It only makes sense for the Supreme Court to vacate the 4th Circuit’s earlier decision and instruct it to reconsider this case,” said Kerri Kupec, legal counsel for the Alliance Defending Freedom.

“The 4th Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers and restrooms. School officials should be free to protect their students’ privacy, safety, and dignity without federal government interference.”

But LGBTQ rights advocates said the high court’s not taking up the case, which had been scheduled for March 28 oral arguments, leaves trans students nationwide in limbo.

“While this plays out in our courts, we are deeply concerned about the consequences this could have for transgender students, who may not be aware of their rights or be subject to increased discrimination by others who feel emboldened by the Trump Administration’s recent actions,” said Human Rights Campaign Legal Director Sarah Warbelow.

“Now more than ever it is crucial for all of us to affirm to transgender students that they are equal, they are valued, and there are millions of people across our country who will have their backs, no matter what.”

Gavin Grimm at his home in Gloucester County, Va. (Photo courtesy of the ACLU)

Joshua Block, an attorney with the American Civil Liberties Union, which represents Gavin, said he’s disappointed the Supreme Court won’t hear the case this term but hopeful Gavin will ultimately prevail.

“This is justice delayed, not justice denied,” Block said. “This is really an urgent situation for transgender students around the country.”

Block pointed to overwhelming support for transgender rights among a broad cross-section of Americans.

Last week, U.S. corporations, rights groups, civil libertarians, current and former police chiefs, more than 30 U.S. cities, 196 House Democrats, clergy, parents, students and teachers flooded the Supreme Court with briefs supporting Gavin in his school bathroom battle.

In July, the Virginia school board filed an emergency appeal to the Supreme Court to halt enforcement of the 4th Circuit order that Gavin must be allowed the use the bathroom corresponding to his gender identity.

Requiring the board to let Gavin use the boys’ bathroom would cause “irreparable harm” to the board, the school system, and the “legitimate privacy expectations of the district’s schoolchildren and parents alike,” board attorneys wrote.

“Depriving parents of any say over whether their children should be exposed to members of the opposite biological sex, possibly in a state of full or complete undress, in intimate settings deprives parents of their right to direct the education and upbringing of their children,” the board argued in a brief.

The Supreme ruled 5-3 last August to issue a stay on the 4th Circuit order pending the high court’s ruling.

The Obama administration’s “Dear Colleague” letter — from the Justice and Education departments — did not carry the force of law. But it clearly stipulated that letting transgender students use bathrooms corresponding to their gender identity falls under Title IX, and said the law must be followed “as a condition of receiving federal funds.”

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