In 2014, the school board of Gloucester County, Virginia, proposed a resolution aimed at making Gavin Grimm stop using the boys' restroom at his high school. Grimm, a transgender boy who had felt supported by his peers and school administrators when he requested that he be treated as a boy at the start of his sophomore year, had being using the boys' room without incident for nearly two months when the resolution was proposed.
After multiple hearings in which proponents of the resolution called Grimm a "girl," "young lady" and "freak" – one suggested him wanting to use the boy's room was like a person who thought he was a dog wanting to urinate on fire hydrants – the board passed the resolution. Grimm wasn't comfortable using the girls' room because the girls perceived him to be a boy. This left him to use single-stall bathrooms separate from the student restrooms. Because Grimm found the special bathrooms embarrassing and inconvenient, he tried to avoid using the bathroom at school and suffered multiple urinary tract infections as a result.
The ACLU and ACLU of Virginia sued on Grimm's behalf and his case made it up to the Supreme Court. But on Monday, the court sent the case back to the appeals court – thanks to the Trump Administration's change in how the Department of Education treats transgender students. That is an unfortunate development, but, despite losing the government's backing, Grimm and other transgender students fighting the wave of bathroom bans across the country should ultimately prevail. Here, a look inside the case of Gloucester County School Board v. G.G., what the most recent development means and how Grimm might still be among the first to fight for transgender rights in front of the Supreme Court.
What are Grimm's legal claims?
Grimm's team argued that the school board violated his 14th Amendment right to equal protection of the law, as well as his rights under Title IX, which prohibits sex discrimination in federally funded institutions. Yet while Title IX generally bars classifications on the basis of sex, the 1975 regulations implementing it specifically allow restrooms segregated by gender. The Gloucester school board argued that regulation unambiguously allows it to ban Grimm from the boys' room. The district court denied Grimm an injunction – which would have allowed him to use the bathroom of his choice – and dismissed his Title IX claim.
But the U.S. Court of Appeals for Fourth Circuit reversed that ruling. That decision depended heavily on a guidance letter issued by the Department of Education's Office of Civil Rights in 2015 interpreting Title IX to require that, in the limited circumstances when schools may separate and treat students differently based on sex, they "generally must treat transgender students consistent with their gender identity." The letter was consistent with existing DOE policy, the policies of other government agencies and many court decisions that have held discrimination based on gender is a form of sex discrimination.
The Fourth Circuit determined that the regulation says nothing about how to decide whether a transgender student is a male or female for the purpose of access to sex segregated restrooms. Even if the court were persuaded that "sex" should be read to mean what the school board called "biological gender," that would not answer how the regulation should apply in all instances: "For example, which restroom would a transgender individual who had undergone sex reassignment surgery use?" the court wrote in its decision. "What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident?" The court found that the DOE's interpretation resolved the ambiguity and was entitled to deference.
Why did the Trump Administration decide to rescind the guidance letter?
The school board appealed to the U.S. Supreme Court, which was set to answer, one, the nerdy administrative law question of whether an agency guidance letter is indeed entitled to deference from the courts and two, whether the DOE's interpretation of Title IX in the 2015 letter should be given effect. So the Supreme Court was going to answer questions focused on the 2015 guidance letter, not just the best interpretation of the law.
But the Trump Administration rescinded that guidance letter before the court heard the case. The Trump letter claimed the 2015 guidance lacked sufficient legal analysis and should have gone through the formal rule-making process required for new regulations. It also references the role of states in education policy in a seeming allusion to "states' rights" – which is concerning, given the role that justification has historically played when states claimed freedom to discriminate based on race.
What does that mean for the Supreme Court case?
After Trump's Department of Justice informed the Supreme Court it had revoked the guidance at issue in the case, the parties argued to the court that it should decide the case anyway. But on Monday, the court vacated the Fourth Circuit's decision and remanded the case for further proceedings. It's disappointing given the bathroom litigation all over the country, and the harm that further delay in resolving it will have on transgender students. However, it isn't unusual for the court to decline to hear a case that hasn't been fully considered by the lower courts. And because the lower courts in this case focused on whether the DOE's guidance was binding, they didn't address whether – irrespective of the government's position – Title IX and/or the 14th Amendment bar the school board from forcing Grimm to use a separate and stigmatizing bathroom.
What will this mean for transgender student rights?
The argument that discrimination against transgender people is a form of sex discrimination isn't anywhere near as novel as Jeff Sessions would have you believe, so we can hope the Supreme Court will rule that Title IX prohibits it once this case or a similar one is before it again. However, if the court wasn't ready to rule that all discrimination against transgender people is sex discrimination, it could still rule more narrowly that bathroom bans are. As a friend of the court brief filed by a group of law professors in Grimm's case explains, rules like Gloucester's prevent students from choosing the restroom appropriate to their gender identities as other students are permitted to on the basis of their genitals – and that is sex discrimination.
We can also expect courts to find that the Equal Protection clause protects transgender people from government discrimination, as a federal court in Pennsylvania did recently. What it takes for a law that classifies people based on particular characteristics to pass constitutional muster depends on whether the law targets a "suspect class." Laws that classify people based on race get the highest level of scrutiny and therefore rarely survive review. Sex-based classifications get "intermediate scrutiny," which means they will be struck down unless the government has an "exceedingly persuasive" justification.
The Supreme Court has not yet ruled on whether transgender people are a suspect class, but the Pennsylvania district court did in Evancho et al. v. Pine-Richland School District. There, the court found that laws affecting transgender people as a class meet the test for heightened scrutiny because transgender people have historically been discriminated against, have defining characteristics with little relation to their ability to contribute to society, and are a minority with relatively little political power.
There's an argument to be made that laws that discriminate against transgender people should receive the highest scrutiny. There's also an argument to be made that bathroom bans are so irrational that they shouldn't survive even the lowest level of scrutiny, which applies where a suspect class isn't targeted. But that may not matter. Bathroom bans are passed by reactionaries who don't want transgender boys in the boys' room or the girls room because their demonstrated intent is to tell transgender kids they are "freaks" who don't deserve to be anywhere. They're the kind of animus-based attacks that so flagrantly offend our constitutional values that the Supreme Court – and swing vote Justice Kennedy in particular – has struck them down without being too precious about tiers of scrutiny. Under Trump, the DOE has stopped telling local governments they can't bully transgender children – but that doesn't mean they can.