The Trump administration has successfully delayed the Supreme Court considering a question of transgender equality.
Monday morning, the Supreme Court issued an order to vacate and remand the lower court’s opinion in the case of Gavin Grimm, the transgender student in Virginia fighting to use the bathroom at his high school. Because this means the U.S. Court of Appeals for the Fourth Circuit will have to reconsider Grimm’s case, this almost certainly guarantees that the question will not be settled until after Grimm graduates. It also means it might not be settled by Grimm’s case at all.
— Equality Case Files (@EQCF) March 6, 2017
The Supreme Court’s decision is not wholly unexpected. When the Fourth Circuit ruled in favor of allowing Grimm to use the boys’ room, it relied on guidance the Obama administration had issued through the Departments of Justice and Education instructing schools to accommodate trans students like Grimm. Last month, the Trump administration rescinded that guidance, so the Fourth Circuit’s decision giving deference to it no longer has a leg to stand on.
Grimm’s case will have to be entirely reconsidered by the Fourth Circuit. It’s possible that his school, Gloucester County, will argue that this makes his case moot, but it might still proceed. After all, it will remain an open question how the district treats other transgender students, and Grimm’s lawyers could also argue that he will return to the school for alumni functions.
But it’s also possible that Grimm’s case will no longer be the one the Supreme Court ultimately considers. For example, the U.S. Court of Appeals for the Sixth Circuit is currently considering the case of a transgender student at an Ohio school who was denied the use of restrooms matching her gender. The Alliance Defending Freedom, anti-LGBT hate group, is representing the Highland Local School District and fighting aggressively for the school’s right to discriminate against the student.
Though this delays the Supreme Court’s consideration of transgender equality and justice for transgender students, it might ultimately be the best in terms of a legal outcome that truly protects them. The Fourth Circuit’s decision was based on judicial deference to the executive agencies, not whether Grimm had a fundamental right to be recognized for who he is.
It’s possible that the next time such a case makes it to the Supreme Court, the justices will be faced with the direct question of whether transgender people deserve to have their gender identities respected under law. That could be under Title IX’s protections based on “sex” in education, which was the interpretation that the Obama administration used in its guidance, or it could be on the basis of equal protection under the U.S. Constitution. A federal judge in Pennsylvania ruled in favor of some transgender students’ last week on that basis.
But however trans kids continue to fight for their equality, they will have to do so without the Departments of Justice and Education on their side.