The Supreme Court’s Decision This Spring Will Likely Affect Trans Rights for Decades to Come

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Analysis Law and Policy

The Supreme Court’s Decision This Spring Will Likely Affect Trans Rights for Decades to Come

Jessica Mason Pieklo

In deciding to take the case of Gavin Grimm, the Roberts Court could affirm that trans students have the right to use restrooms that align with their gender identity rather than biological sex.

Sometime in the spring of 2017, the U.S. Supreme Court will hear arguments in the case of Gavin Grimm, a 17 year-old transgender student from Virginia who sued his school district after it instituted a policy mandating students use bathrooms consistent with their biological sex rather than their gender identity.

And how the Court decides Grimm’s case will likely affect transgender rights in schools for decades to come.

The Obama administration has since 2013 steadily moved the needle on transgender rights in schools, explaining to school administrations the difference between providing for sex-segregated facilities—which Title IX of the Education Amendments of 1972 allows in some situations—and using those facilities as justification for discriminating against transgender students. Among other actions, the U.S. Department of Education (DOE) issued a guidance that notified federally funded schools that failing to allow transgender students access to restrooms and locker rooms consistent with their gender identity amounts to unlawful sex discrimination, and will expose those schools to litigation and risk their federal funding.

In other words, DOE explained, schools may continue to have sex-segregated facilities like restrooms as they always have, but they cannot determine on the basis of gender identity which students have access to which facilities.

It’s that letter, and its interpretation of Title IX, that the Roberts Court will consider when it hears Grimm’s case.

Roe is gone. The chaos is just beginning.

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Grimm sued the Gloucester County School Board in 2015, arguing its policy mandating transgender students use bathrooms that align with their biological sex or “alternative” restroom facilities violates Title IX and the 14th Amendment. Grimm’s attorneys argue the policy effectively singles out transgender students for discriminatory treatment on the basis of the sex by mandating which restroom they may use.

Grimm is the only transgender student at his school, and thus the only person currently affected by the Gloucester County School Board’s policy.

A district court initially sided with the school board, but the Fourth Circuit Court of Appeals reversed, siding with Grimm twice to hold that the board’s policy violates Title IX and that Grimm should be allowed to use the men’s restroom. It sent the case back to the district court, which issued an injunction in Grimm’s favor. But in August, the Supreme Court stepped in and granted a request by the Gloucester County School Board to stay the Fourth Circuit’s decision while the Roberts Court decided to review the case. That decision put back into place the school board’s policy, which will remain at least until the Court issues its decision in 2017.

That means that for the remainder of his time in high school, Gavin Grimm will be forced to use separate, single-stall restrooms that no other student is required to use, while eight justices consider what, if any, rights Grimm and other transgender students have to be free from discrimination at school.

According to a recent survey published by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, 78 percent of gender nonconforming youth reported “significant abuse at school.” Of those surveyed, 35 percent reported being physically assaulted at school. For transgender students, that harassment was so severe that it led almost one in six to leave school.

This is the pervasively dangerous, hostile environment conservatives are not just defending, but arguing they have a right to incubate and grow. They’ve made the argument in Grimm’s case. They’ve made the argument in the lawsuit filed by conservative states challenging the DOE Title IX interpretation. And they make the argument every time they defend in public the so-called bathroom bills like North Carolina’s HB 2.

That’s why it is so significant that the Roberts Court took up Grimm’s case now. In the last few years, conservatives have used bathroom bills and access as a way to whip up gender panic. At the center of that gender panic is a 17-year-old kid who simply asked school officials to treat him like they treat the rest of his classmates, and instead became the face of the fight over transgender student rights nationwide.

“I never thought that my restroom use would ever turn into any kind of national debate,” Grimm said in a statement after the Roberts Court announced it would take up his case.

It’s also important to remember the issue the Court refused to hear in taking up Grimm’s case. Attorneys representing the school board asked the Court to reverse a line of cases that holds courts are to defer to administrative agency interpretation of the laws those agencies are charged with enforcing. The Supreme Court developed that principle in two key cases: Auer v. Robbins in 1997 and Bowles v. Seminole Rock & Sand Co. in 1945. Those cases state that courts are required to defer to a federal agency’s interpretation of its implementing regulations as long as that interpretation is not “plainly erroneous” or inconsistent with the regulation itself.

Conservatives do not like the Auer doctrine because under it, the Obama administration has not just expanded legal protections for transgender students and workers, but sought to protect low-wage workers too. In response, conservatives launched challenge after challenge to it, hoping the Roberts Court would bite and overturn Auer. So far, the Court has refused, recently turning away a direct challenge in May. In Grimm’s case, it refused to grant review on the issue of whether Auer should be overturned.

In that context, conservatives’ case against Grimm is simply another attempt to attack a legal doctrine they disagree with. Except unlike their other challenges to Auer, this time, conservatives tried to use a transgender kid to do so.

That’s critical to remember, as conservatives will insist Grimm’s case is about the privacy rights of other students at his school and the big, bad Obama administration once again exercising too much executive power. It’s not, and it never really was. With the Court’s refusal to grant review of Auer, rather than going on the offense attacking agency power, conservatives will be left instead to explain before the Roberts Court next year their gender panic and transphobia directed at a Virginia teenager.