Attorneys for a transgender teen who sued his school board for barring him from the boys’ bathroom said Thursday they plan to continue to press his case before the Supreme Court, despite the Trump administration’s decision to withdraw federal guidelines that had buoyed his lawsuit.
The guidelines had instructed schools to let students use the restroom that matched their gender identity, regardless of their anatomy. Now that they have been rescinded, it is even more important that the high court weigh in to eliminate confusion and ensure that children are protected, lawyers for 17-year-old Gavin Grimm said.
The Supreme Court late Thursday afternoon asked attorneys for both sides to submit letters by next Wednesday addressing where the case should go from here. The decision of the U.S. Court of Appeals for the 4th Circuit that favored Grimm was based primarily on the Obama administration’s guidance that was rescinded.
“If anything, the confusion caused by this recent action by the Department of Justice and the Department of Education only underscore the need for the Supreme Court to bring some clarity here,” American Civil Liberties Union attorney Joshua Block said in a teleconference with reporters Thursday morning. Grimm’s case against the school board in Gloucester County, Va., is scheduled for oral arguments in Washington on March 28.
The Trump administration’s change in policy this week drew praise and condemnation from the predictable corners Thursday but also put new pressure on states and individual school districts to figure out new policies and tamp down anxiety among transgender students and their parents.
Scrutiny also fell on President Trump and his Cabinet after reports that top officials had disagreed over whether to rescind the prior rules. Trump, who has said he supports LGBT rights, also has said he thinks it should be up to states to decide the bathroom policy for transgender students in public schools.
Education Secretary Betsy DeVos, who had initially objected to pulling the guidance but ultimately signed off on the decision, defended her actions at a conservative gathering in Washington. She said President Barack Obama had overreached in establishing a transgender policy for all of the nation’s schools.
The sudden lack of guidance left states and school districts scrambling to figure out how to fill the apparent void, and to reassure transgender children and their parents that they are safe and valued. In New York, Attorney General Eric T. Schneiderman issued what he termed a “reminder” to schools that state law protects transgender student rights regardless of federal guidance. Massachusetts Attorney General Maura Healey spoke at a news conference alongside LGBT advocates to criticize the administration’s actions.
The decision had particular resonance in North Carolina, which last year passed a law requiring people in public buildings to use the restroom that matches the gender on their birth certificates. The law drew scorn from celebrities, sports leagues and major corporations, and it figured prominently in the gubernatorial election in which the governor who signed it was defeated.
Lawmakers there have been locked in a battle over how and whether to repeal the law, which resulted in millions of dollars of lost tourism revenue. Both sides cited the Trump administration’s actions as a reason to support their position on the law.
“Because of the new federal policy, North Carolina’s privacy law — HB2 — remains more vital than ever as efforts to strip away privacy protections will shift even more to the state level,” Tami Fitzgerald, executive director of the NC Values Coalition, said in a statement.
In an echo of the fight there, several large companies, including Apple and Microsoft,registered their displeasure with the federal action.
“We support efforts toward greater acceptance, not less, and we strongly believe that transgender students should be treated as equals,” Apple said in a statement. “We disagree with any effort to limit or rescind their rights and protections.”
The biggest question in the wake of the Trump administration’s withdrawal of the guidance is whether the Supreme Court will step in to settle the issue.
The justices could keep Grimm’s case on schedule, send it back to the lower courts for more work or perhaps delay consideration until the Trump administration has clarified its views on the legal issues involved.
Under the last two scenarios, Supreme Court nominee Neil Gorsuch might be confirmed and the court would be back to full strength. A seat has been open since Justice Antonin Scalia’s death more than a year ago.
Both Gloucester County and the ACLU are urging the Supreme Court to decide the merits of the case, about whether the protections of Title IX should be extended to cover gender identity. “I do think this is an incredibly urgent issue,” Block said.
But the Supreme Court generally likes to have the benefits of lower court deliberations on such important questions. The panel of the U.S. Court of Appeals for the 4th Circuit in Richmond is the only appeals court to have ruled, and its ruling for Grimm was couched almost exclusively on deference to the Obama administration Education Department’sinterpretation of Title IX.
“We think this changes the complexion of the case considerably,” said Kyle Duncan, who is representing the Gloucester County School Board at the Supreme Court. “One thing [the court] absolutely should do is vacate the 4th Circuit’s opinion.”
Rather than send the case back, Duncan agrees with the ACLU that the court should move forward. When the justices agreed to hear the case, they added a question that would allow them to get to the merits, Duncan said, and both sides highlighted that in their briefs to the court.
The Trump administration gave the justices little to go on in the letter it sent Wednesday night. It said only that it is rescinding the Obama administration’s guidance, and that it would “consider further and more completely the legal issues involved.”
It would seem unusual for the court to decide such an important area of federal law without briefing from the government.
The Supreme Court is likely to be closely divided on the issue. In August, it voted 5 to 3 to stay the 4th Circuit’s opinion, which meant Gloucester did not have to comply with the order that Grimm could use the boys’ restroom at his high school. Justice Stephen G. Breyer said he was joining the conservative justices in granting the stay as a “courtesy” that would preserve the status quo while considering the school board’s request to review the case.
Justice Anthony M. Kennedy is the conservative who most often joins the court’s liberals on social issues. He has written all of the court’s decisions advancing gay rights.
The decision to withdraw the guidance seemed likely to have a biggest impact on another case in which Texas and a dozen other states have sued the federal government over the Obama administration’s original guidance.
A federal judge had halted implementation of the guidance, and the case was on temporary hold at the request of the Trump administration. With the guidance withdrawn, it seemed likely the case would be moot. Another option would be to keep the preliminary injunction in place until the new guidelines are issued.
Kirk Ross in Raleigh, N.C., and Emma Brown and Moriah Balingit in Washington contributed to this report.