Transgender Americans were anxiously awaiting the day later this month when their rights would be considered in a case before the Supreme Court. But thanks to President Trump, they’ll be waiting longer.
It looked like Virginia high school student Gavin Grimm was going to get transgender kids their day in court, with the Supreme Court having already set a date to hear his case — March 28. Then Jeff Sessions was named attorney general of the United States.
Sessions moved quickly to undo the Obama administration’s guidance that said transgender students must be treated according to their gender identity, which had meant trans kids like Grimm couldn’t be forced into single-occupancy bathrooms or other inappropriate facilities. Grimm's school board had prevented him from using the boys' restroom and required him to use an inconvenient, single-occupancy one.
The Supreme Court agreed to hear the case after a three-member panel for the U.S. Court of Appeals for the Fourth Circuit ruled in Grimm’s favor, citing both the Obama guidance and the federal Title IX law. When Sessions undid the Obama guidance, trans activists — and the Gloucester County School Board, which was being sued — had hoped the justices would still move ahead and decide whether transgender people are included in Title IX’s protections against gender-based discrimination.
Today, the hobbled court, with only its eight justices instead of nine, vacated the case. That means it not only didn’t take the case — which would’ve meant Grimm’s win at the lower court had stood — but also that the justices undid the appeals court ruling and asked it to start again.
This doesn't necessarily mean Grimm's case won't still end up at the Supreme Court. But the change in law initiated by Sessions and Trump now means the case must be decided only on Title IX. From the perspective of Sessions and opponents of trans rights, that’s the best possible outcome. They’re hoping a do-over comes with a different outcome.
“This announcement speaks volumes to the ways that President Trump's actions are already having devastating consequences for transgender youth across the country,” said Matt McTighe, executive director of Freedom for All Americans, in a statement. “All students, including transgender students, deserve to participate fully and succeed in school, and to feel safe and respected while doing so.”
“The Supreme Court has missed an opportunity to end the painful discrimination currently faced by tens of thousands of transgender students nationwide,” said Eliza Byard, executive director of the Gay, Lesbian, and Straight Education Network. They have been “left in limbo,” she said.
The National LGBTQ Task Force’s Stacey Long Simmons, director of public policy and government affairs, called the court’s move “extremely disappointing.” But the Task Force noted that the justices haven’t yet interpreted any law. “That said, nothing about today’s action changes the meaning of the law: Title IX and the Constitution protect Gavin and other transgender students from discrimination,” said Simmons, confident Grimm would ultimately win.
PFLAG executive director Elizabeth Kohm made a similar point. “Today’s decision did not change the meaning of Title IX, although we are disappointed that the Supreme Court will not take the opportunity now to provide further clarity around the discrimination protections it provides transgender students,” she said. “Today’s decision only reinforces PFLAG’s resolve to stand by Gavin and all trans youth across the country, who need this protection in order to attend school fairly and safely. Our 400+ chapters across the country will continue to work with school districts to make sure they have inclusive policies that protect transgender youth. We will also provide continued support and guidance to students, parents, and all concerned, trusted adults to report acts of discrimination against LGBTQ youth using Claim Your Rights, our joint initiative with GLSEN.”
So did Mara Keisling, executive director of the National Center for Transgender Equality: “It is regrettable that the issue of equality for transgender Americans will not be heard by the highest court of the land. We are, however, confident that the Court of Appeals will again conclude — as most courts have — that anti-gender discrimination laws like Title IX protect transgender students and forbid schools from singling them out. It’s understandable that many Americans who are still not familiar with their transgender neighbors have questions. But there is simply no reason for Gavin, or the hundreds of thousands of students like him, to be forced to make a ‘walk of shame’ to a separate facility every single day. We expect and urge all schools to meet their moral and legal responsibility to fully respect and include their transgender students, as thousands of schools around the country have already been doing for years.”
Ilona Turner, legal director at the Transgender Law Center, said she is “optimistic the Fourth Circuit will reach the right result, as virtually every other court to consider the issue has done.” Executive director Jill Marcellus cautioned, however, that some schools “will take advantage of this moment to take actions that discriminate against transgender students.” She urged any student encountering discrimination to contact the organization.
Human Rights Campaign legal director Sarah Warbelow expressed concern as well. “To be clear, transgender students are covered by Title IX and are entitled to the same rights and protections as every other student,” she said. “But 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. 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.”
Members of the religious right, though, were gleeful. A Family Research Council press release called the court's action “good news to parents and students concerned about privacy and safety in school showers, locker rooms and bathrooms,” adding, “In light of the Obama edict being withdrawn and this case now remanded, we are cautiously optimistic that the Fourth Circuit Court of appeals will reverse itself.” The FRC also refused to recognized the concept of transgender identity, saying the Obama-era guidance would “force schools to allow biological males to use girls' showers, locker rooms, and restrooms, and vice versa.”