A federal appeals court in Richmond relied on that guidance last year in ruling that Gavin Grimm should be permitted to use the boys’ bathroom at his Gloucester County school, and the school district promptly appealed to the Supreme Court. Now that the policy has been eliminated, the justices face a choice of whether to vacate that decision and send the case back or decide on their own which bathrooms are suitable under a 1972 federal law prohibiting sex discrimination?
The first thing they did Thursday was predictable: The court gave lawyers on both sides six days to submit their views on how best to proceed.
Their choice is complicated by the timing of the Trump administration’s directive, coming five weeks before the case was to be heard and on the same day that Grimm’s lawyers submitted their 62-page legal brief. The high court could send the case back to Richmond as early as next week, or it could hear oral arguments March 28 before deciding, in essence, whether to decide.
In the background as they weigh those options, the eight justices know they remain shorthanded and in danger of deadlocking 4-4 until Trump’s nominee for the vacant ninth seat, federal appeals court Judge Neil Gorsuch, goes before the Senate for confirmation in April. In the case of such a tie, the court likely would rehear the case when it’s back at full strength.
“I don’t know what the procedure’s going to be. I don’t think anybody does,” said Kyle Duncan, who is representing the school board in the case. “It’s a complicated issue, a moving target.”
When the high court agreed in October to hear the school board’s appeal, Election Day was less than two weeks away and Hillary Clinton led in the polls. The possibility that the next administration would reverse the Obama administration’s guidance to school districts seemed remote.
The justices agreed to consider two questions: Should the Supreme Court’s customary deference to agency decision-making apply, and does the Obama policy fit the prohibition on sex discrimination under Title IX of the Education Amendments of 1972?
The appeals court based its ruling for Grimm on deference to the Obama policy – a decision that would have been different if the policy didn’t exist. Because of that, several lawyers and academics predicted Thursday that the Supreme Court will punt for now.
“The most likely thing for them to do is to send it back,” said Geoffrey Stone, a constitutional scholar at the University of Chicago Law School and author of the new book, Sex and the Constitution. “I would think that the court would say, ‘OK, the situation has changed.’”
But advocates for transgender rights said the threshold issue of how Title IX applies remains very much alive and should be decided.
“This is an incredibly urgent issue,” said Joshua Block, who is representing Grimm on behalf of the American Civil Liberties Union. Confusion over the impact of the Trump administration’s action, he said, “only underscores the need for the Supreme Court to bring some clarity here.”
Shannon Minter, legal director of the National Center for Lesbian Rights and a transgender man, said school boards and administrators might think the new policy allows other forms of discrimination against transgender students. That makes it even more crucial for the justices to decide the issue, he said.
“I hope the justices recognize how important it is that they resolve it,” Minter said, “and not leave all these students in school districts across the country hanging.”