The Trump administration reversed federal guidelines Wednesday that dictated transgender students should be allowed to use restrooms that match their gender identity, spurring outrage from advocates for LGBT rights. But the case may also have consequences beyond ending the Obama-era directive, changing judicial reasoning in the first transgender rights case being heard by the Supreme Court next month.
The high court is scheduled in March to hear the case of 17-year-old Gavin Grimm, a transgender teen from Virginia who sued the School Board of Gloucester County in 2015 for barring him from using the boys’ bathroom at his high school, alleging it infringed on his civil rights. The 4th U.S. Circuit Court of Appeals had ruled in Grimm’s favor, and the Supreme Court agreed to hear the case after an appeal from the school board last October. The Supreme Court also ruled to temporarily stay the appeals court’s ruling for Grimm, meaning the student, set to graduate later this year, is still barred from using the boys’ bathroom at Gloucester High, the Washington Post reported.
Despite the rollback of the Obama letter, both the Gloucester County School Board and Grimm said they expect the case to proceed to oral arguments scheduled for March 28.
Grimm, who appeared at an ACLU rally outside the White House Wednesday night as the Trump administration’s new letter was released, vowed to keep fighting for transgender rights in front of the high court next month.
“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,” he said, to applause.
“We will not be beaten down by this administration or any,” he added. “What can happen today does not mean my case ends.”
The Gloucester County School Board, in a statement reported by WAVY, said they “look forward to explaining to the Supreme Court why this development underscores that the Board’s commonsense restroom and locker room policy is legal under federal law.”
“The Gloucester County School Board is pleased that the federal government has withdrawn the opinion letter at issue in its case,” the statement read. “This action shows ‘due regard for the primary role of the States and local school districts in establishing educational policy.’”
But the likelihood Grimm’s legal case succeeds may be undermined by the new administration’s reversal of the Obama guidance letter. The appeals court that ruled in Grimm’s favor cited both the Department of Education’s interpretation of Title IX policy as well as the Obama letter to support its decision, and the Trump administration’s reversal means justices could consider the question of how to interpret that guidance moot.
The current balance of the Supreme Court poses another problem: The court stands at an even-numbered eight justices since the death of Justice Antonin Scalia last year. A 4-4 split would likely uphold the lower court’s ruling in Grimm’s favor, but Judge Neil Gorsuch, who Trump nominated to replace him, is scheduled to have a confirmation hearing on March 20, days before Grimm’s case will be heard.
It is unclear if Gorsuch would take the bench soon enough to weigh in — or possibly decide — Grimm’s case. Gorsuch’s judicial past on LGBT rights is thin, according to the New York Times, though advocacy groups like GLAAD have criticized the votes that are on his record, which include a case in which he voted against a transgender woman’s access to a bathroom at work before she had undergone sex reassignment surgery.
Senate Democrats have said they will try and block Gorsuch’s nomination, but Republicans in the upper chamber have threatened to use their slim majority to invoke the “nuclear option” and confirm him regardless.