Advocates on both sides of the debate over transgender bathroom rights are pushing the Supreme Court to settle the issue once and for all.
The Trump administration’s decision Wednesday to rescind Obama-era guidance that allowed transgender students to use the bathroom that corresponds with their gender identity came just a few weeks before the court will hear arguments on whether a Virginia school can block a 17-year-old transgender student from using the boy’s bathroom.
Because the school had been appealing a lower court order that deferred to the Obama administration guidance, Trump’s order has left the court asking: What now?
On Thursday, the Supreme Court requested the parties in the case submit their views on how the case should proceed in light of the guidance document issued by the departments of Education and Justice. Those responses are due by 2 p.m. on March 1.
Both sides want the case to move forward as planned.
“The Supreme Court should absolutely still hear arguments and answer the questions it granted cert on, which was whether the previous administration’s interpretation of Title IX was correct,” said Joshua Block, a senior staff attorney at ACLU, which brought the case forward on behalf of Gavin Grimm.
Grimm, a transgender male who was born female, was barred from using the boy’s bathroom in 2014 after the Gloucester County School Board enacted a policy requiring all students to use the bathroom that corresponds with their gender assigned at birth.
The Fourth Circuit Court of Appeals sided with Grimm, who argued that the school board “impermissibly discriminated against him” in violation of Title IX anti-discrimination laws and his constitutional right to equal protection under the law.
The Fourth Circuit said the Obama administration guidance should be given deference because federal anti-discrimination laws are ambiguous when it comes to “sex.”
“It is not clear to us how the regulation would apply in a number of situations — even under the board’s own ‘biological gender’ formulation,” Judge Henry Floyd wrote in the court’s majority opinion.
“For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident?”
The Supreme Court is now being asked to answer two questions: Whether courts should give deference to agency guidance that's in the form of an unpublished letter, and whether Title IX can be extended to require schools to treat transgender students consistent with their gender identity when it comes to bathroom facilities.
“We certainly want to have arguments in court,” said Kyle Duncan, the attorney representing the Gloucester County School Board.
Duncan said the Trump administration’s letter to the court Wednesday validates the school board’s central argument: that decisions about bathroom use should be left to states and local school boards.
“A court should not show deference to such a guidance document and part of the reason for that is, from administration to administration, you could have differing views," he said. "So this proved our point."
But Block said the letter from the Trump administration has only created confusion.
In it, the departments said they were rescinding the Obama guidance "in order to further and completely consider the legal issued involved" because it failed to "explain how the position is consistent with the express language of Title IX."
"It’s a very unusual document, and I don’t think it's by any means clear what effect that document will have," Block said.
Given the new guidance, the Supreme Court could decide to cancel the oral arguments scheduled for March 28 and send the case back to the Fourth Circuit.
But Matt Sharp, senior counsel at the conservative Christian nonprofit Alliance Defending Freedom, said the high court needs to weigh in now. He said confusion over the definition of “sex” has already come up in other areas of the law.
The Equal Employment Opportunity Commission ruled in 2015 that existing federal protections against workplace discrimination based on sex also apply to sexual orientation.
In schools, Sharp said girls are living with the consequences of being forced to share locker rooms and showers with biological males.
Freedom for All Americans rejects arguments that Obama’s guidance has put students at risk.
“School districts across the country encompassing millions of students have had protections in place for transgender students for years without incident, including Los Angeles Unified School District, the largest public school system in California and the second largest public school district in the United States, serving 655,000 students,” the group said in a release this week.
“The administration’s decision to rescind the guidance has no impact on schools that are already doing the right thing — they can and will continue to protect transgender students.”
The guidance from the Obama administration had been on hold since a Texas district court judge ruled in August that the guidance constituted a rulemaking, which means it would require a time-consuming public notice and comment period.