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.”