Putting off for at least a year any final ruling on the rights of transgender students under federal civil rights law, the Supreme Court on Monday ordered a federal appeals court to make a new review of a high-profile Virginia case, including an analysis of the change in policy by the Trump Administration.For the 17-year-old transgender boy at the center of the case, Gavin Grimm, the Court’s action means that he probably will graduate from high school in June without knowing whether he will win or lose his case. At a minimum, though, the new order wipes out the preliminary victory he had won in lower courts. That victory, however, was temporarily on hold while the Supreme Court acted on the case in an appeal by the school board.
For the transgender rights community, which has led what has become the nation’s latest civil rights movement, its desire to have a clear-cut and final Supreme Court ruling on whether discrimination based on gender identity is illegal will now have to wait for further developments in lower courts across the nation. There is no realistic possibility of a final Supreme Court decision for at least a year.
The Court had agreed to rule on the case of Gloucester County School Board v. G.G. to decide whether the 1972 federal civil rights law (Title IX) that bans discrimination “on the basis of sex” also bans discrimination based on gender identity. That category refers to people who were assigned one gender at birth but later accept that they are of the opposite gender.
Gavin Grimm was assigned female gender when he was born in May 1999. When Gavin was denied access to the boys’ bathroom at his high school in the small town of Gloucester Courthouse in Virginia, under his identity as a boy. he and his mother sued the school board under Title IX. When their case reached the U.S. Court of Appeals for the Fourth Circuit, they won. That court relied primarily upon the view of the Obama Administration that Title IX does reach gender identity discrimination. That was the lower court ruling that the Supreme Court had previously put on hold and, on Monday, vacated. A hearing on the case that had been set for March 28 will not now be held.
The Justices’ action on Monday, taken without any Justice noting a dissent, followed the disclosure last month to the Court by the Trump Administration that it was withdrawing the Obama Administration view. Although the new government’s lawyers insisted at the time that they had not made up their own minds on the scope of Title IX, they did stop enforcing the Obama approach across the nation, and so notified school systems. (Title IX bans discrimination in education programs supported by federal funds.)
When the Fourth Circuit Court gets the case back from the Supreme Court, it is expected to ask lawyers for the school hoard and for the youth involved to file new briefs giving their reaction to the Trump Administration review. In addition, the Circuit Court is likely to invite the Trump Justice Department to spell out more precisely just where it stands on the meaning and reach of Title IX’s ban on sex discrimination. As of now, the federal government is not a party in the case.
There is no timetable yet on when the case might move forward in the Fourth Circuit Court.
That case, or some other, could reach the Supreme Court for a new test of the legal issue. There are significant cases now unfolding in North Carolina on that state’s law on the use of restrooms in all state buildings, and in the U.S. Court of Appeals for the Fifth Circuit involving 12 states’ challenge to the Obama Administration policy on the scope of Title IX.
After the Trump Administration took its own stance against the Obama view, the Supreme Court asked both sides in the Virginia case to react. Both sides replied that the Justices should go forward and decide the issue.
The Court chose not to take that advice, opting to let the lower court take a new look.
By the time a new case reaches the Supreme Court in the future, the Court may have a full bench of nine Justices. There had been an indication earlier in the Court’s handling of the Virginia case that it might result in a 4-to-4 tie; that would settle nothing.
Although Gavin Grimm is scheduled to graduate from high school on June 10, that would not spell the end of his case. He still has pending a claim for damages for the school board’s treatment of him on access to restrooms. That claim is based not only on Title IX, but also the U.S. Constitution.
If he loses on the Title IX claim, that would shift the focus to the constitutional claim, based on the Fourteenth Amendment’s guarantee of legal equality. It is not clear as of now whether that guarantee extends to transgender people. So far, the lower courts that have ruled on the Virginia case have not ruled on that separate question.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.