It is an issue that has roiled the nation, pitting LGBT activists and transgender youth and their parents against those who say privacy and safety are compromised by accommodating transgender youth in school restrooms and locker rooms. School boards have found themselves facing either recriminations from the federal government or lawsuits by activists and parents.
In Grimm’s case, a panel of the U.S. Court of Appeals for the 4th Circuit had deferred to guidance issued by the Obama administration and overruled the Gloucester County School Board’s policy that students must use restrooms that correspond with their “biological sex.”
But the Trump administration last month rescinded that guidance. So the Supreme Court in a one-sentence order vacated the 4th Circuit’s opinion and sent it back for further consideration, which may require a closer look at the constitutional and legal questions.
Grimm said he was disappointed that his senior year will probably end without resolution of the issue.
“But I’m still as passionate and happy to be doing this as ever,” he said in a conference call with reporters, adding, “If it took 10 years, I’d stick with it.”
Joshua Block, a lawyer with the American Civil Liberties Union who is representing Grimm, said there is a silver lining in the national attention the case has received, even without a Supreme Court decision.
“The overwhelming level of support shown for Gavin and trans students by people across the country throughout this process shows that the American people have already moved in the right direction and that the rights of trans people cannot be ignored,” Block said. “This is a detour, not the end of the road.”
The Gloucester County School Board had also asked the court to decide the underlying legal issues but said it would now concentrate on convincing the appeals court that the board’s “commonsense restroom and locker room policy is legal under the Constitution and federal law.”
Conservative legal groups said it was wise of the Supreme Court to vacate the 4th Circuit’s ruling and send it back for additional legal argument.
“The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” said Kerri Kupec, legal counsel for the Alliance Defending Freedom.
But school officials who had hoped for a definitive answer from the court said the delay will leave them open to additional lawsuits.
“The ultimate constitutional issues remain unresolved for the school districts,” said Francisco Negrón Jr., chief counsel for the National School Boards Association. “Regardless of what action they take, they are liable to be sued by persons on both sides of this issue.”
In the absence of a Supreme Court decision and federal guidance, school officials will look to states to navigate what has proved 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.
Block said that besides Grimm’s case, there are lawsuits in North Carolina, Ohio, Pennsylvania and Wisconsin that may quickly provide the Supreme Court with another chance to consider the core issues of transgender rights.
“There will be plenty of vehicles for the court in the next term if it wants,” Block said.
The big question is whether transgender rights are protected by the Constitution as well as Title IX, the 1972 federal law that bans discrimination “on the basis of sex” in schools that receive federal money.
Grimm relied on Title IX in his lawsuit, which said it was discriminatory for the local school board to insist that he use a private bathroom in the nurse’s office rather than ones that aligned with his gender identity.
Grimm was born with female anatomy but came out to his parents as transgender at the beginning of high school. He changed his name and has a Virginia birth certificate that identifies him as male.
The Obama administration sided with Grimm and said schools generally must treat transgender students consistent with their gender identity. In a guidance letter last year, the administration said schools risked losing federal money if they discriminated against transgender students.
A panel of the 4th Circuit said it was deferring to the Department of Education for a definitive reading of the law because Title IX’s prohibition on sex discrimination could be read to include transgender students.
That interpretation was rescinded by the Trump administration late last month. It said the Obama administration’s guidance did not contain “extensive legal analysis” supporting the reading of Title IX. But the Trump administration’s letter to the court did not provide its own conclusion.
The Supreme Court then called for the views of Grimm’s lawyers and the school board.
Both urged the court to go ahead with the case, saying there had been enough briefing on the Title IX question for the justices to make a decision.
But generally the Supreme Court does not like to take up an issue that has not had full exploration in the lower courts, and Monday’s decision to send it back seemed to underscore that.
By the time the issue returns to the Supreme Court, the bench is likely to be fully staffed. The court has been without a ninth member since Justice Antonin Scalia died more than a year ago. President Trump's nominee, Judge Neil Gorsuch, is scheduled to begin confirmation hearings this month.
The case is Gloucester County School Board v. G.G.
Moriah Balingit and Emma Brown contributed to this report.