“We’re disappointed,” said Bob Farrace, spokesman for the National Association of Secondary School Principals. Farrace said the group, in a friend-of-the-court brief backing Grimm, had “highlighted that school leaders need clarity on policies that support the rights of transgender students. Kicking it back to states only exacerbates that need.”
The decision comes after the Trump administration revoked federal guidance issued by its predecessor, the Obama administration, that directed public schools to permit transgender students to use bathrooms that align with their gender identity. The 4th Circuit had relied on the Obama administration’s position on transgender student rights when it sided with Grimm in his battle with the Gloucester County school board. Now that the federal position on the issue has changed, the high court said the appeals court must reconsider the case.
Francisco Negron Jr., chief counsel for the National School Boards Association, said the lack of clarity leaves school districts more vulnerable to lawsuits. In districts across the country, transgender students have sued for access to bathrooms and locker rooms of the gender they identify with. But other students, backed by conservative legal groups, have also sued to overturn policies that permit transgender students into bathrooms that align with their gender identity.
“What I think is less clear now in terms of the legal issues is exactly which is the right legal choice for school districts because the ultimate constitutional issues remain unresolved for the school districts,” Negron said. “Regardless of what action they take, they are liable to be sued by persons on both sides of this issue.”
Advocates for transgender students said they fear that the Trump administration’s decision to rescind the Obama-era guidance and the Supreme Court’s decision to not hear the case will embolden some to ban transgender students from restrooms that align with their gender identity. Many school districts and North Carolina have already done that.
“It is deeply distressing that the court passed up the chance to provide relief for this embattled group of students,” said Eliza Byard, executive director of the national Gay, Lesbian and Straight Education Network. “I’m just afraid that today’s Supreme Court decision adds further confusion and provides some individuals with the perceived license to discriminate.”
Those who back the Gloucester board said they do not believe that Title IX, the federal law that bars sex discrimination in public schools, extends to transgender students on the bathroom issue. They hope that the 4th Circuit will agree.
“In our view it’s a good opportunity for the Fourth Circuit to affirm the plain meaning of Title IX,” said Gary McCaleb, senior counsel for the Alliance Defending Freedom, a Christian legal organization that opposes allowing transgender children to use the bathrooms that correspond with their gender identity. The law has been “misused in an effort to force gender identity theory into schools. It’s time to protect the privacy of everyone and keep those facilities — locker rooms, showers and so on — reserved for the use of boys and girls separately.”
In the absence of a Supreme Court decision and federal guidance, school officials will look to states to navigate what has proven to be a deeply divisive issue in many places, generating heated school board meetings and lawsuits. In 14 states and the District of Columbia, there are explicit protections for transgender students on the books. In North Carolina, transgender people are barred from using bathrooms that align with their gender identity. Several other states have floated similar legislation, some with financial penalties for schools that allow transgender students to use bathrooms of their choice.
The uncertainty means that it up to states, school districts and sometimes individual principals to decide which bathroom a transgender student uses. Many school districts have no policies and instead choose to accommodate students on a case-by-case basis, often sending them to unisex faculty or nurse bathrooms, apart from their classmates.
“Some states have already provided that clarity–even before the Obama-era guidance was issued,” said Farrace. “But most states have not, leaving us with a patchwork of policies that treat transgender kids as inconsistently worthy of their rights.”
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.”
Parents of transgender students were also disappointed at the news and had hoped that the high court would affirm the right of their children to use bathrooms that align with their gender identity, a matter that many consider critical to the health and well-being of transgender people.
“This morning’s decision by the Supreme Court hit like a physical blow,” wrote Vanessa and JR Ford, the parents of a 5-year-old transgender girl in the District, on their Facebook page. “We will continue to fight for the basic rights of our children to exist and live safely and freely in schools and public life.”