On Monday, the Supreme Court punted on a key transgender rights case, leaving the issue of trans bathroom access in federally funded schools unsettled for the near future. Its dodge marks a sad anticlimax for the plaintiff, Gavin Grimm, who is currently a senior and who will now have to use a converted utility closet as a bathroom for the remainder of his high school days. Unfortunately, the sidestep may also indicate that there simply are not five votes on the current court to support a reading of existing law that compels trans bathroom access, at least in education.
Grimm’s case arose after his Virginia school board enacted a rule specifically designed to bar him from the boys’ bathroom—which he had theretofore used without incident. (Although Grimm was assigned female at birth, he has medically transitioned to male, and the state of Virginia recognizes him as a man.) Grimm sued the school board under Title IX, which bars sex discrimination in federally funded schools, insisting that this prohibition encompasses gender identity discrimination. The Obama administration issued guidance to that effect, which the U.S. Court of Appeals for the 4th Circuit relied upon in ruling against the school board and affirming Grimm’s right to use the correct bathroom.
Shortly before the election, the Supreme Court agreed to review the 4th Circuit’s decision, focusing on whether the lower court was correct to defer to the Obama administration’s guidance with regard to restroom facilities and gender identity. Since then, of course, the anti-trans Trump administration has come to power—and in February, it revoked the Obama-era guidance protecting trans students. Attorneys for both the school board and Grimm, however, urged the justices to move forward with the case anyway, leaving aside the deference question and instead ruling whether the plain text of Title IX forbids anti-trans discrimination.
But the justices, with no noted dissents, declined to do so on Monday. Instead, the court vacated the 4th Circuit’s decision and sent the case back down to that court for “further consideration in light of” the Trump administration’s revocation of the Obama administration’s trans guidance. Now the 4th Circuit will have to decide whether Title IX, read on its own, prohibits gender identity discrimination as a form of “sex discrimination.” Once it does, the case can be appealed back up to the Supreme Court. At that point, though, there is a real danger that the courts could decide the case is mooted by Grimm’s graduation from high school, and therefore no longer ripe for judicial review.
Monday’s punt demonstrates two things pretty clearly. First, it suggests that Grimm does not have the votes to win this case. Recall that in August, the Supreme Court stayed the 4th Circuit’s ruling while the justices pondered taking the case. The four liberal justices would’ve let the decision take effect, while the four conservatives wished to block it. (Justice Stephen Breyer only cast a “courtesy” fifth vote to “preserve the status quo” while the court was in recess.) I strongly suspect that if the four liberals felt they had a fifth vote for Grimm, they would’ve tried to forge ahead with the case. But that elusive fifth vote would’ve belonged to Justice Anthony Kennedy—who voted, without reservation, to block the 4th Circuit’s decision in favor of Grimm back in August. It seems likely that, this time around, the liberals took Kennedy’s pulse on the matter, decided he was still leaning the wrong way, and therefore went along with the punt, concluding that a delay is better than an outright defeat.
Second, it is now undeniable that the Trump administration has seriously diminished trans students’ rights for the foreseeable future. Had Hillary Clinton won the presidency, she almost certainly would’ve maintained the Obama administration’s trans guidance and appointed a liberal justice to the bench. This justice could’ve cast a fifth vote to affirm the validity of that guidance, thereby protecting trans students across the country. Instead, the guidance is gone, and the Supreme Court is about a gain a near-surefire vote against trans rights in nominee Neil Gorsuch. Elections have consequences. And the election of Donald Trump has already harmed countless trans kids, who have seen their right to equal dignity cruelly undermined in a just a few short months.
