The LGBT community has been making long-deserved strides recently in obtaining equal protection under the law. With decisions like Windsor and Obergefell, we have precedents protecting us from discrimination based on whom we love.
However, our progress in the courts has mainly regarded sexual orientation and not sexual identity. As I’ve said before and I will say again, it is time to trans*ition the gay-rights movement and focus more on protecting our transgender brothers and sisters. To that end, our first battle will begin exactly where everyone thought it would: the bathroom.
On Oct. 28, the Supreme Court of the United States announced it will review a decision of the Fourth Circuit Court of Appeals regarding the discrimination of transgender people in the educational system. The case, G. G. vs. Gloucester County School Board, has the ability to set the precedent that sexual identification is a classification eligible for legal protection against discrimination in educational institutions.
In December 2014, the Gloucester County School Board in Virginia passed a resolution creating the Gloucester County public schools’ transgender restroom policy “to provide male and female restroom and locker-room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender-identity issues shall be provided an alternative appropriate private facility.” In response to the pending lawsuit, the Office of Civil Rights in the United States Department of Education released a Statement of Interest of the United States to clarify its interpretation of the word “sex” in Title IX of the Educational Amendments of 1972 and its implementing regulation. Title IX prohibits discrimination “on the basis of sex,” while its implementing regulation permits “separate toilet, locker rooms and shower facilities on the basis of sex,” if the facilities are “comparable” for students of both sexes. The statement clarifies that the Department of Education intends for Title IX’s prohibition of “sex” discrimination to “include gender identity,” and that a government-funded educational institution providing sex-separated facilities “must generally treat transgender students consistent with their gender identity.”
After the federal appeals court ruled in favor of G.G., saying that schools barring students from using the bathrooms of their gender identity violated Title IX, with the Department of Education statement as its reasoning, the school board appealed.
SCOTUS has decided to determine if the Statement of Interest of the United States has any legal authority and whether the interpretation set forth in the statement is to be given effect, regardless of their finding of legal authority. Luckily, they will be answering the questions separately.
If they find the statement to hold legal authority, then G.G. will succeed on the merits. If they decide that the statement does not hold authority, SCOTUS will still make a separate decision on whether there is legal protection for transgender students. The case will likely be heard in March.
My prediction of the outcome rests primarily with the upcoming presidential election because the president will determine the make-up of SCOTUS come March. As it stands, with the Senate refusing to consider any appointments to replace the late Justice Antonin Scalia, SCOTUS is equally split between conservative and liberal justices, meaning a 4-4 ruling, and therefore, the federal appeals-court decision stands — i.e., we win!
If there is an appointment before the case is heard, it will depend on the appointed justice to break the hypothetical tie. However, it is worth noting that the “conservative” Justice Anthony Kennedy has sided in favor of LGBT rights in the last four seminal cases upon which all of the rights we’ve won rest: Romer vs. Evans, invalidating a Colorado law banning gay-discrimination claims; Lawrence vs. Texas, invalidating criminal laws on homosexual sodomy; United States vs. Windsor, deeming the Defense of Marriage Act as unconstitutional; and, most recently, Obergefell vs. Hodges, making same-sex marriage a nationwide right.
I’m particularly hopeful because what Kennedy has focused on throughout his written decisions and oral arguments regarding LGBT issues are not simply our 14th- and Fifth-Amendment rights to be treated the same as our heterosexual counterparts. Rather, he gave attention to the children of LGBT people and their right to grow up free from discrimination and exposure to familial instability simply because their parents are viewed differently in the legal context. Kennedy knows that every society’s future and progress is based on the healthy development of its children, and hopefully he will be on our side when he sees the effects these “bathroom policies” have on our transgender children.
Regardless of the outcome, this SCOTUS decision will set the path for equal protection of the law for transgender individuals. If we’re lucky, Kennedy will prove once again to be an ally of the LGBT community, and we will prevail. The fight continues and we should not start celebrating just yet, but it looks like there may soon be a few more legal rainbows in the American sky.