So much has changed since that day in October when we all rejoiced at the announcement that the Supreme Court of the United States would hear G. G. v. Gloucester County School Board and review a decision of the Fourth Circuit Court of Appeals regarding the discrimination of transgender people in the educational system. We thought this case was potentially setting precedent that sexual identification is a classification eligible for legal protection. So much has changed since then that the very basis of the case and why SCOTUS agreed to hear it has been jeopardized.
Gavin Grimm, now a senior in high school, is the plaintiff in G. G. v. Gloucester County School Board. Grimm was born a girl but identifies as a boy. He has been issued an amended birth certificate identifying him as male, received hormone treatments and underwent chest-reconstruction surgery. His lawyers have argued that prohibiting him from using the boys’ restroom is discrimination “on the basis of sex.” In response, 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.”
Grimm sued the board, and 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. The feds stated that a government-funded educational institution providing sex-separated facilities must treat transgender students consistent with their gender identity.
The federal appeals court, deferring to the Obama administration’s position that federal law protected his right to use the boys’ bathroom, ruled in favor of Grimm, holding that schools barring students from using the bathrooms of their gender identity violated Title IX. The school board appealed and SCOTUS is set to hear the case on March 28 — or are they?
Prior to the Trump administration’s reversal, the question facing the Supreme Court was whether Obama’s Statement of Interest of the United States, which the lower court relied on for its decision, had any legal authority — even though it was unpublished and adopted into law in direct response to Grimm’s lawsuit — and whether the interpretation set forth in the statement is to be given effect, regardless of their finding of legal authority.
But the basis for the appellate ruling has disappeared, now that the Trump administration revoked the Obama-era guidance.
The first thing SCOTUS did after Trump’s reversal was ask the lawyers for both sides to submit their views on how best to proceed, especially given the timing of the Trump administration’s directive, coming just five weeks before the case was to be heard, and on the same day that Grimm’s lawyers submitted their 62-page legal brief.
SCOTUS could send the case back to Richmond as early as next week, or it could hold oral arguments March 28 as scheduled and decide afterwards to send it back down to the lower court. The temptation to wait is strong for several reasons. First, there are several cases like Grimm’s working their way up the appeals courts and there has yet to be a circuit decision based on the constitutional merits; the high court typically won’t take up a major legal issue until several courts around the country have weighed in. The temptation may be even stronger because the court has been one justice short for more than a year, after the death of Justice Antonin Scalia, and there is no chance that Trump’s nominee, Judge Neil Gorsuch, could join the court in time for the March 28 argument. Lastly, if the case does move forward and it’s a 4-4 tie, the court would likely have to rehear the case when it’s back at full strength.
The biggest reason to wait is because the appeals court based its ruling for Grimm in deference to the Obama policy — which Obama promulgated in response to Grimm’s case. Many believe the Fourth Circuit Court of Appeals would have decided differently but for Obama’s policy. Because of that, and the other reasons mentioned, legal pundits predict that SCOTUS will punt for now. LGBT advocates contend that the confusion over the impact of the Trump administration’s action only underscores the need for the Supreme Court to bring some clarity to the issue.
Every society’s future and progress is based on the healthy development of its children, and this issue is not only important to the 150,000 transgender kids in our schools — it’s a life and death issue. I’m hoping that SCOTUS weighs the effects these “bathroom policies” have on our transgender children and decide to hear the case.
And I know Grimm feels the same way. As of today, he is still barred from using the boys’ bathroom.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real-estate law and civil rights. Her website is www.giampololaw.com, and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or [email protected].