What’s Next for Gavin Grimm’s Case?

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Analysis Law and Policy

What’s Next for Gavin Grimm’s Case?

Jessica Mason Pieklo

The Supreme Court may have kicked Gavin Grimm's case back to an appellate court, but the fight for transgender rights is far from lost.

The U.S. Supreme Court on Monday stepped away from the case of Gavin Grimm, the transgender student who has sued his school district after it instituted a policy mandating students use bathrooms that align with their biological sex rather than gender identity.

Instead of hearing arguments in Grimm’s case later this month as it originally planned, the Roberts Court sent his case back to the U.S. Court of Appeals for the Fourth Circuit for another look. So far, the Fourth Circuit has ruled twice in Grimm’s favor, finding that the ban on sex discrimination under Title IX of the Education Amendments of 1972 protects the rights of trans students like Grimm. Even if a positive precedent is eventually set moving forward, Gavin is likely to end his high school years without his existence as a transgender person recognized and respected by his school district—although the law and public opinion are clearly on his side.

The Supreme Court’s reversal is the result of the Trump administration announcing in late February that it was pivoting away from the Obama administration with regard to enforcing Title IX rights on behalf of transgender students. The new administration would not take away public funds for those school districts that, like Grimm’s, adopted or had in place policies mandating students use bathrooms that correspond with their assigned biological sex.

The Court reversal cast a shadow over Grimm’s case, but it hardly spells the end for transgender rights under Title IX.

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There are at least five other federal district courts that have ruled in favor of transgender student rights, explained Grimm’s attorney, the American Civil Liberties Union’s Joshua Block, in a call with reporters Monday. All of those decisions still stand. Meanwhile, there are at least three cases pending in federal courts of appeals that have also ruled Title IX protects students like Grimm from being discriminated against because of their gender identity. Two of those cases, one from the Sixth Circuit and another from the Seventh Circuit, had been put on hold pending resolution of Grimm’s case. Another, a challenge to North Carolina’s discriminatory “bathroom bill” HB 2, is scheduled to be heard by the Fourth Circuit Court in May.

Remember, the Fourth Circuit is the same federal appeals court that has ruled twice in Grimm’s favor.

It will likely be another year or two before Grimm’s case is fully resolved. The court’s initial rulings happened at very early stages of the case. This time, the Fourth Circuit will likely issue an order directing the attorneys in the case to submit additional briefings before scheduling the case for oral arguments, probably sometime in May. And in that time, any one of the cases mentioned above could find its way before the Roberts Court as early as next term. But while those cases work their way through the courts, trans students going to school in districts with policies similar to the ones at issue in Grimm’s have the choice of potentially suing their schools to enforce their rights.

Even so, the idea that the law is slowly catching up with public opinion and articulating clearly that sex discrimination includes discrimination on the basis of gender identity is cold comfort for transgender people who simply want to exist in public safely and without fear of harassment. There is also no escaping the very real danger trans people face every day. 2016 was the deadliest year on record for transgender people, with 27 reported homicides. In the first two months of 2017, at least seven transgender people have been reported murdered.

Women of color face the worst of this violence.

Even if the Supreme Court had decided to keep Grimm’s case and hear arguments in late March, the violence toward the transgender community would not cease immediately; even a Court ruling in Grimm’s favor would not eradicate the dangers transgender people face. It would, however, be a step in a positive direction. Given the nonstop barrage of hateful speech and policy coming from the Trump administration, it’s reasonable to anticipate 2017 could be as deadly a year as 2016. Which is why it’s important, while these cases work their way through the courts, to repeat over and over and over again that these are not “bathroom” cases. Yes, they involve access to bathrooms. But they are so much more. They are about the right of transgender people to be in public. The Supreme Court may not be willing to recognize that right to exist just yet, but it will have to sooner or later.