SCOTUS Transgender Bathroom Case More Important than Ever

On March 28, the U.S. Supreme Court will hear oral arguments in a first-of-its-kind case that could do for transgender rights what Obergefell did for marriage equality. While this case was always important, President Trump’s recent order canceling the Obama Administration’s guidelines on transgender bathrooms in schools, means it is now all the more critical.

The case, Gloucester County School Board v. Grimm, involves Gavin Grimm, a transgender high school student, who was born anatomically female but identifies as male. Grimm sued Virginia’s Gloucester County over a new school board policy that states all students in public school must either use the bathrooms that correspond with their biological sex or unisex/gender-neutral facilities.

When Gavin initially came out as transgender, began dressing as a boy and changed his name, his school was encouraging. Teachers and staff used his preferred name and pronouns and he was allowed to use a private bathroom in the nurse’s office. Gavin used that bathroom at first because he was unsure about how he would be accepted, but he soon began using the boys’ restroom as not doing so only increased his feelings of being different.

The school began receiving complaints from parents about Gavin’s use of the boys’ restroom. This led to a school board meeting at which the new bathroom use policy was established. It passed by a 6-1 vote. As a result, the school built several unisex bathrooms and began enforcing the policy. Grimm sued the school board and county, alleging the new policy violated Title IX and the Equal Protection Clause of the 14th Amendment.

So far, Grimm has been successful. The U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia found in his favor. A district court also granted a preliminary injunction against the school board’s policy and allowed Grimm to continue to use the boy’s bathroom. The school board has appealed all earlier decisions, and the case is now before the Supreme Court. Unfortunately, the SCOTUS justices have issued a stay in the case while it awaits oral arguments and Grimm is once again not allowed to use the boys’ bathroom.

Grimm and his counsel faced an uphill battle with SCOTUS even before President Trump reversed Obama’s groundbreaking transgender bathroom guidelines for schools. At its core, this case is about whether the Department of Education (DOE) has the flexibility to broaden the protections afforded under Title IX against sex discrimination to include gender identity. When it ruled in Grimm’s favor, the 4th Circuit specifically cited previous DOE interpretations of Title IX along with the Obama school guidelines. The Trump Administration has now effectively cancelled out both of those as precedent.

Another wrinkle is that Judge Neil Gorsuch, President Trump’s nominee to fill the Supreme Court vacancy left by the passing of Justice Scalia, is scheduled to be confirmed on March 20. If that happens, it will be a conservative-leaning court that hears Grimm’s case on March 28, though Gorsuch does not have a clear track-record on LGBT issues. His confirmation hearings may also be delayed by Democrats, but Republications are adamant they will get him through the process, even if they have to use their majority in the Senate to force the matter.

For his part, Grimm is steadfast, showing great courage as a young person who has been thrust into the national spotlight over such a controversial issue. He took part in an ACLU rally outside the White House protesting the Trump Administration’s move to rescind Obama’s school bathroom guidelines, saying: “In one month, I will do what few teenagers have the chance to do: stand before the U.S. Supreme Court because my lawyers from the ACLU will be asking the court to decide whether transgender students like me have the right to be treated just like our peers at school. We will not be beaten down by this administration or any. What can happen today does not mean my case ends.”

Hopefully, the U.S. Supreme Court justices who hear Grimm’s case recognize the courage of this young man, the rightness of his argument, and do what is necessary to protect the rights of all transgender Americans.

Posted in LGBT Law.