In the midst of an already extremely tumultuous and for many US citizens, dangerous political climate, the Supreme Court has decided it will take up the legal issue of trans people’s access to bathrooms that correspond with their gender by hearing the appeal of a case involving Gavin Grimm, a 17-year-old trans boy from Virginia.
Grimm was “briefly allowed by administrators at his Gloucester high school to use the boys bathroom” after coming out, then the school board and local parents forced him to instead use a single-stall restroom in the school’s nurse’s office, which Grimm says “stigmatized him among other students.” Grimm sued the school board, and the 4th U.S. Circuit Court of Appeals ruled in his favor, on the basis that Title IX “prohibits discrimination based on sex by federally funded educational institutions.” Central to the premise of their ruling, and of several other key rulings on anti-trans discrimination, is that discrimination on the basis of gender identity constitutes discrimination based on sex.
Now, the school board is appealing that decision, and the appeal has reached the Supreme Court. Sources reporting on the decision generally offer surprise that the SCOTUS has taken it on — the Bay Area Reporter writes that “to some extent, it is unusual that the court took this case because the ruling under appeal was a preliminary one, not one on the merits. The 4th Circuit’s ruling was issued in response to a preliminary motion in Grimm’s lawsuit.”
It’s momentous anytime an issue hotly contested in a number of state courts, like marriage equality or bathroom bills, reaches the Supreme Court. On the one hand, it represents the opportunity for a ruling that could echo and empower previous trans-affirming rulings; on the other, there’s the risk that it could overturn them and create a national legal precedent that sets the work activists have been doing to keep trans people safe by years.
In this case, the specific legal precedent that hangs in the balance is the interpretation of Title IX — and other federal legislation that refers to “discrimination on the basis of sex” as also referring to gender identity. The court’s ruling will, according to the Bay Area Reporter, “address only two of three questions that the school district attorneys posed: First, they ask whether the courts should give “deference” to the Department of Education’s interpretation of the law, given that it came in an “unpublished agency letter.” And, second, they ask whether legal effect should be given to the department’s interpretation of Title IX.” To take a look at what SCOTUS will be responding to in terms of the department’s interpretation of Title IX, it was this:
In its petition to the Supreme Court, the school district’s primary argument was that, when Congress passed Title IX, it intended the word “sex” to mean “nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” It says the Department of Education’s interpretation of “sex” to include “gender identity” amounts to creating new law.
This isn’t as clear-cut as the Supreme Court necessarily declaring once and for all whether “sex” also includes “gender identity” for legal purposes; it could also choose to issue a more “narrow” ruling where they only speak to whether the department’s definition of “sex” should be given validity in this particular case. Depending on how the court interprets that language and how broad a ruling it makes, the precedent set could even reach beyond bathroom bills and to legal interpretation of other legislation, like Title VII of the Civil Rights Act, which makes it illegal to discriminate in employment on the basis of “race, color, religion, sex, or national origin.”
A lot is hanging in the balance with the possibility of this ruling — potentially the future of trans people’s legal right to safely access bathrooms that correspond with their gender, as well as the future of potential legal avenues to push for expansion of trans rights in court if Title IX and Title VII are ruled as not applying to gender identity. And most immediately, a young trans person, Gavin Grimm, will find himself in the middle of a heated and very public legal battle, at risk for constant scrutiny, harassment and transphobia.
Also hanging in the balance is what the Supreme Court will even look like when they hear this case, a hugely important and totally unclear element. Following the death of Antonin Scalia, there are only eight justices on what’s normally a nine-justice court; and with Republicans doing their best to block the appointment of a new justice by any Democratic administration. Depending on the outcome of the election next week, we could have drastically different candidates for justices in that empty ninth seat, potentially tipping the balance of the ruling; alternatively, if the Republicans continue blocking a nomination, we could still just have eight justices. If that’s the case, we see the possibility of a split decision, with a 4-4 tie between justices. In that case, the legal outcome for Gavin Grimm would revert to the 4th Circuit Court’s ruling in his favor; his rights would be upheld personally but no larger precedent would be set.
We won’t see the outcome of this case for a while, but it’s important to keep an eye on, as it has the potential to impact vulnerable trans and gender nonconforming communities hugely, and the personal burden that Gavin Grimm is taking on highlights how frequently individual marginalized people find themselves bearing enormous pressure as part of the slow progression towards greater justice.