SCOTUS Kicks Grimm Case Back To Lower Court, Trans Kids Remain In Legally Murky Hellscape

For months, concerned citizens have been watching and waiting in preparation for the Supreme Court to hear the case of Gavin Grimm, a trans teen suing his school alongside the ACLU for his right to use the boys’ bathroom and locker room, on March 28. Significant numbers of amicus briefs had been sent to the court, “from nearly 200 members of Congress, more than 60 current and former police chiefs and sheriffs, over 30 U.S. cities, the National Education Association, the National Parent-Teacher Association (PTA), the American School Counselor Association, National Association of School Psychologists, the NAACP, the Anti-Defamation League, leading LGBTQ nonprofits, dozens of major corporations and over 100 transgender adults from various professions.”

Today, the Supreme Court announced it would be vacating the lower court’s ruling, meaning it decided not to hear it as it stands after all and instead to send it back to the lower court. Their reasoning is based on the decision by the Trump administration to rescind a guideline that the Obama administration had instituted through the Department of Justice, and which directed courts toward a legal interpretation of Title IX that affirmed the gender of trans students. Although that decision itself doesn’t mean the Supreme Court can’t hear this case, SCOTUS has decided that since the lower court ruling that they would be hearing the appeal of was informed by the DoJ’s previous guideline, it should be revisited. Essentially, the Supreme Court has sent the case back down to a lower court to get a re-do.

The immediate effects of this decision are that almost everyone is left with questions. The fate of Gavin Grimm’s case individually is once again unclear; it will be heard once again by the US Court of Appeals for the Fourth Circuit, which could also decide to send it back down to a lower court. Students, parents and advocates around the country who had been hoping for a clear decision that could bolster their dealings with local school systems are now left on their own; school systems that had been hoping for guidance from the judicial branch aren’t sure of next steps. The Washington Post looked at one school board in Virginia, where Grimm lives, who had been waiting on the court’s decision.

Ryan McElveen, who sits on the board of Fairfax County schools in Virginia, said his board was awaiting word from the Supreme Court before it proceeded with regulations to affirm that transgender students have access to bathrooms of their choice. The board in 2015 added gender identity to its non-discrimination policy and last year began to draft regulations spelling out how schools should accommodate transgender students. But it delayed a vote because some members wanted to hear from the Supreme Court. “I think we will continue to look to what the court does for guidance now that it’s being sent back to the appeals court,” McElveen said. “We hope in some form to bring closure to this because our students, our staff are demanding answers and demanding closure on how we handle these cases.”

Other school boards are likely to use the uncertainty around the current legal status of bathroom use to further enforce policies that are harmful to trans students, like forcing them to use the facilities of the sex they were assigned at birth or forcing them to use the small number of unisex bathrooms provided, arranging their school day around access to them and being visibly othered in their educational community. In many ways, Trump’s claiming that he will leave trans protections “to the states” is a way of giving states license to discriminate against trans people, and trans kids, with no threat of repercussions.

In the slightly longer term, we’ll still almost definitely see Grimm’s case, or another one very much like it, go to the Supreme Court. Mara Keisling of the National Center for Transgender Equality noted with NBC that similar cases to Grimm’s are currently working their way up through the courts; the chief counsel for the National School Boards Association also noted at the Washington Post that the murky legal status of school bathroom access leaves schools more open than ever to lawsuits both from trans students and from cis students and parents who feel their child’s privacy is being violated when trans students have access to the correct restroom.

It’s probably not a matter of if trans bathroom access in schools will come before the Supreme Court, but when. However, depending on a timetable, it’s likely that by the time the Supreme Court does hear a case on this issue, there will be a ninth justice on the bench. Since the death of Antonin Scalia over a year ago, the Supreme Court has had only eight justices on it; it seems likely that the Trump administration will succeed in having a justice of their choosing appointed to the bench by the time this legal question comes back up. If that justice ends up being Neil Gorsuch, their current nominee, he has a history of ruling against trans people’s interests. There’s also no way to know what the exact legal premise will be of the case that makes it to SCOTUS – part of the reason Grimm’s case was significant was because it had been argued in the courts on the basis of Title IX, holding that Title IX’s prohibition against discrimination on the basis of sex applied to trans students, and a SCOTUS ruling on it would have either upheld or weakened that legal interpretation. Simply put, a great deal is up in the air about the future of legal efforts around this issue.

The judicial system has always been the branch of American governance where the immediate power of the individual citizen is most subdued; outside of voting for judges and justices, court decisions are out of our control. We can’t call justices to petition them on our views like we can elected representatives. However, the safety and dignity of trans people in our communities isn’t up to the courts alone. Citizens have the power to organize against bathroom bills passed in their states, and make it clear to elected representatives that supporting them is the end of their chances for reelection; to become involved in local school boards and meetings, whether they have a child who’s a student or not, and press school administrators on how their trans students are being treated. We can listen to and follow the lead of trans women and trans women of color in our communities, the people most vulnerable to these harmful laws and at the highest risk of violence. As Grimm’s lead counsel Joshua Block told the Washington Post, “Nothing about today’s action changes the meaning of the law. Title IX and the Constitution protect Gavin and other transgender students from discrimination.”

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1047 articles for us.

13 Comments

  1. Seriously, FUCK DONALD TRUMP. Fuck him, and everyone who agrees with him and voted for him and continues to make excuses for him and his short-sighted bigoted policies which do nothing to help ANYBODY and only serve to make life harder for the people for whom it is already REALLY FUCKING HARD.

  2. Oh I agree, why can’t he and the rest of his bigoted ilk let people just be. What harm is Gavin doing using the correct restroom? I’m a trans person and the worse thing I have done in the bathroom is the same thing most people have done at some point in their lives, clog the toilet. Generally if the restroom isn’t gender neutral I get nervous that someone will do harm or throw me out(been thrown out once).

    Transphobes think it’s us trans people who are going to harm/be inappropriate in the bathroom; but, the reality is cis men who are into women are the ones causing the most problems. Just watch the news or google it up. In fact I heard two different stories about the same guy, from two different people in my building recently. And there is nothing I can do, due to lack of evidence.

  3. The fight goes on. And on, and on, and on. I know this is trite but nothing worth having comes without a fight. We have no viable alternative but to keep fighting for ourselves and our community.

  4. I am worried about a very dangerous trend. The rights of parents over the rights of students. Education is a right given to our youngest citizens. Not to their parents. If they come into this country from another country and they are not educated they are not guaranteed a free education. We can offer that to them. We give our students a special class of citizenship regardless of citizenship or not. Why because we see the right of education as a means to end. Which is why when a school board opposes a trans student I can sympathize with the schoolboard because they represent the students. What I can’t tolerate is parents who sue because they feel that there kids are being infringed upon. First off anything to do with education should be exercised by the students themselves. So it should be up to a student to sue his local school board in arbitration that should determine anything. So if a student has a problem with one trans person then he should be able to make a complaint but that is as far as it goes. That would be considered an act of harassment by the student. Unless an entire class of students makes a case against it then they should be sued. We have forgot about the special class we have given students and instead listened to their loud mouth obnoxious parents who don’t care about anyone but themselves. That goes for liberals and conservatives.

    • A trans student’s right to safely use the restroom that aligns with their gender = a trans student’s right to exist. No other student should be able to take that right away from them, just like no person can take my right to use the restroom away from me. Your division between students and parents here is meaningless because neither should be able to take fundamental rights from other students.

  5. Let me clarify one thing, I don’t think the schoolboard should discriminate against trans students. It is just from a legal standpoint, they the schoolboard’s job is represent all students. Not just the conservative ones or the most popular. It is this representation I can understand and sympathize with. Does it mean they are always right no, but they are in a better position to represent our students then parents are.

  6. It’s a pretty ridiculous procedural glitch. If the Fourth Circuit disagreed with the Title IX interpretation, they would have just overturned it. Since they evidently agree with it, sending the case back to them just means they’ll have to write the same decision directly instead of by reference. The district will appeal to SCOTUS again, and we’ll be back where we were.

  7. Sorry what my point was is that students together deserve the rights granted to them by a free education. Including trans students and even home schooled children. Some of the parents of students are suing. It isn’t even the school boards. School boards would have more power to give students freedom if not for the parents getting angry. The big problem I see is that kids are not getting the education they deserve because parents only care about politics. Students deserve the right to make their own judgement about their education. In fact I think after a certain grade maybe eighth grade, students should have the right to vote on all matter pertaining to their education. And it should be them who should be the ones making the complaints. If a trans student wants to use the restroom then let the student body decide. If they as students say yes then no parent or school board should say no. If they say no then the student should have the right to go above the student body to the school board and then sue them. This way it will be the students forced to deal with the situation and give them a grown up lesson. For younger students, school boards should have the right to make the decision and the parents should be able to sue but only if the student really wants to. They have to go before the judge in their own words and talk to them and state why they think it will be problem. This way they will understand accountability.

Contribute to the conversation...

You must be logged in to post a comment.