High school senior Gavin Grimm cannot attend school football games with his friends because there is no bathroom he can use at the stadium. Grimm, a transgender 17-year-old boy, has been singled out by the local school board and forced to use “alternative” bathroom facilities. Grimm and his lawyers hoped a Supreme Court ruling would change that — and firmly establish equal rights for transgender students along with it — but the high court has declined to hear the case at this time.
On Monday, the Supreme Court vacated the legal battle over whether Grimm would be able to use the bathroom, and remanded the case to a lower court in light of the Trump administration’s decision to rescind a guidance put forth by President Obama’s Justice Department on the rights of transgender students.
Grimm began using the boys’ bathroom at his public high school in Gloucester, Virginia after receiving permission from school administrators. In 2014, the school board intervened and issued a policy that forces Grimm, and potentially any other transgender student, to use a private, single-stall bathroom that visibly separates him from his peers and is not always easy to access.
Grimm sued the school board, arguing that Title IX, the federal law that blocks federal funding to schools that discriminate based on sex, protects his right to use the bathroom that corresponds with his gender, not to mention his updated birth certificate. A federal appeals court agreed, deferring to an interpretation of Title IX put forth by two guidance letters issued by the Education and Justice Departments last year under President Obama.
The letters instruct schools to allow transgender students to use bathrooms and other facilities that correspond to their gender instead of forcing them to use either separate facilities or facilities that correspond to the gender they were assigned at birth. In doing so, The Obama administration declared that Title IX protects transgender students from sex discrimination, just as it has advanced equal opportunities for women since its passage in 1972.
“But neither today’s action by the Supreme Court nor the [Trump administration’s] rescission of the guidance change the law,” wrote Chase Strangio, a member of Grimm’s legal team, in a blog post on Monday. “Title IX, the federal law banning sex discrimination in educational institutions, and the Constitution of the United States continue to protect trans students from discrimination.”
Last month, the Trump administration rescinded the guidance, citing the “significant” litigation it created without citing Grimm’s case by name. The administration’s letter points out that a federal court in Texas disagrees with this interpretation and has blocked the Obama guidance from being enforced.
The Grimm case positioned two questions before the Supreme Court: What deference, if any, should be given to the Obama-era guidance on transgender students, and does Title IX indeed protect transgender students from discrimination based on their gender?
An affirmative ruling from the Supreme Court on the latter issue would have been a massive legal victory for the LGBTQ rights movement, affirming equal rights under federal law for transgender students nationwide. However, with the Trump administration’s rescission of the Obama guidance now in place, the Supreme Court sent the case back to the appeals court below it to dig deeper into the Title IX question.
“This is a detour, not the end of the road, and we’ll continue to fight for Gavin and other transgender people to ensure that they are treated with the dignity and respect they deserve,” said Joshua Block, a member of Grimm’s legal team with the American Civil Liberties Union.
In their letter rescinding the Obama guidance, the Departments of Education and Justice argue that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.” However, state governments and school boards cannot determine someone’s gender — only people themselves can do that. And the movement for transgender rights and self-determination is growing stronger every day.
“When I was growing up, I did not even know it was possible to be trans,” Strangio wrote after the Supreme Court’s announcement. “I had no idea that I could find peace in my body and in the world. Today, trans young people are leading our fights across the country.”
Grimm’s case could still conceivably be heard at the Supreme Court, but by then the scope of the case will have changed, and Grimm will have graduated, having been forced to spend much of his time as a student singled out by his local school board.
Other cases, such as a challenge to North Carolina’s infamous bathroom law, could also bring the Title IX question before the court. The North Carolina law states that students must use the restrooms corresponding to the sex stated on their birth certificates. It is being challenged in the Fourth Circuit Court of Appeals, the same federal court that must now reconsider Grimm’s case.