On Wednesday, Trump administration officials in the Departments of Justice and Education are expected to officially withdraw an Obama era guidance providing that “a school generally must treat transgender students consistent with their gender identity.”
It’s a blow to trans rights that casts a cloud of uncertainty over several pending lawsuits involving the rights of trans students. In the long term, however, it means that a reckoning on the status of trans students under the law is likely to come much sooner than it otherwise would have.
The Obama administration’s guidance gave courts an “out” that they could have used to protect trans rights in the short term while leaving many crucial legal questions on the table. Without that guidance, the stakes are now much higher both for trans students and for the people who want to deny them equal rights.
Last April, the United States for the Fourth Circuit held, in G.G. v. Gloucester County School Board, that schools risk their federal funding if they prevent trans people from using bathrooms that align with their gender identity. Yet, while this decision was a victory for trans rights, it rested on a fairly fragile reed — the Obama administration guidance that Trump officials just walked back.
The G.G. case is currently pending before the Supreme Court.
G.G. involves three layers of federal legal documents. The first is an Act of Congress, Tile IX, which provides that “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” On its face, this law could be read to prohibit separate men’s and women’s rooms in school facilities, because segregated bathrooms are a form of “discrimination.”
To ward off this possible interpretation, the Education Department promulgated a regulation which permits “separate toilet, locker room, and shower facilities on the basis of sex” so long as the facilities “provided for students of one sex” are “comparable to such facilities provided for students of the other sex.”
This regulation answers the question of whether gender segregated bathrooms are allowed, but it also leaves a number of questions wide open. The regulation, with its language referring to “one sex” and “the other sex,” presumes that gender is a binary concept, and that every student can be sorted into either the male restroom or the female restroom. It is also completely silent on the status of trans students.
Should a trans man like Gavin Grimm, the plaintiff in G.G., use the men’s room or the women’s room? The men and women who drafted the Education Department’s regulation did not appear to be aware that this question would come up. And, indeed, the Fourth Circuit concluded in G.G. that the regulation “is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.”
Which brings us to the Obama administration’s guidance. That guidance resolved the ambiguity in the bathroom regulation by clarifying that a trans student’s gender is determined by their gender identity, not by the gender they were assigned at birth. The Fourth Circuit’s opinion, moreover, relied heavily on that guidance in resolving G.G.
A 1997 Supreme Court decision, Judge Henry Floyd explained in the Fourth Circuit’s opinion, “requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”
Now that the guidance has been withdrawn, however, courts no longer need to defer to it.
In the short term, it is fairly likely that the Supreme Court will kick this case back down to the lower courts to consider how the regulation should be interpreted now that there’s no longer an official agency interpretation of the regulation to defer to. Such a decision, however, will only delay the inevitable. Courts will now need to resolve whether existing law protects trans students or not.
They will need to resolve whether, under current civil rights law, a trans man counts as a man or a woman.
So what happens now?
The school district in G.G. offers up a fairly simplistic understanding of the concept of “sex” or “gender.” Its policy provides that men’s and women’s rooms “shall be limited to the corresponding biological genders.” And, indeed, opponents of trans rights often use the term “biological” to refer to the gender that a person is assigned at birth. If someone was born with female genitals, then they are “biologically” female, in this locution.
This concept of what it means to be “biologically” female, however, ignores considerable scientific evidence indicating that the physiological indicia of a person’s gender stretch well beyond the question of what they have between their legs. One study, for example, found that trans people’s brains are “more similar in some respects to the brains of their experienced gender than those of their natal gender.”
Another exposed “adolescent boys and girls with gender dysphoria” to a steroid that is known to cause a different brain response in men and women. It found that “the adolescent boys and girls with gender dysphoria responded much like peers of their experienced gender.”
It is a misnomer, in other words, to label Grimm a “biological woman” because these studies suggest that he shares many biological traits with cisgender men.
Yet, while Grimm may have science on his side, the question of whether he will have five justices on his side is much more uncertain. Though Grimm prevailed in the Fourth Circuit, he has not enjoyed the fruits of that victory because the Supreme Court stayed the lower court’s decision last August.
Notably Justice Anthony Kennedy, who has typically been supportive of gay rights, voted to grant the stay. So did Clinton-appointed Justice Stephen Breyer, although Breyer wrote that he did so as a “courtesy” to his four conservative colleagues.
If Kennedy proves less sympathetic to trans rights than he’s historically been towards gay rights, then Grimm’s future in the Supreme Court looks grim. And Kennedy voted to grant this stay before the Trump administration took away one of Grimm’s strongest arguments under existing law.