by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law
Donald Trump last week rescinded the Obama administration’s guidance to schools concerning their obligations to transgender students. This change in federal policy now requires the Supreme Court to decide whether and how to deal with its first major transgender rights case, which involves a transgender Virginia high school boy, Gavin Grimm.
We should hope that the Court decides to abstain and to dismiss the case as improvidently granted. That outcome would preserve Grimm’s victory in the lower court and avoid the potentially damaging results of the justices entering this fray too soon. Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future.
Unlike the four major gay/lesbian rights victories the Court handed down between 1996 and 2015, culminating in nationwide marriage equality, this case, Gloucester County School Board v. G.G., is not about grand constitutional principles like equality and liberty. The Trump administration’s action removed the primary issue in the case, which was one of administrative law: whether lower courts should have deferred to the Obama administration’s view that Title IX, the federal statute that was originally enacted to afford women equal opportunity in education, requires schools to allow transgender students to use restrooms and locker rooms that are consistent with their gender identity rather than their biological sex.
With the administrative law question now moot, the Court could still decide the case as a matter of statutory interpretation: that is, regardless of the executive branch’s shifting policy views, how should Title IX apply to transgender students’ ability to use sex-segregated facilities? But by asking the parties for their views on how to proceed, the Court last week signaled it may at least be thinking about dismissing the case.
The Court should do so. Grimm won in the Fourth Circuit, but his lawyers from the ACLU opposed certiorari and argued that it is too soon for the Supreme Court to authoritatively settle the Title IX question one way or the other. As other courts of appeals consider similar cases, Grimm’s attorneys wrote, those courts “will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.”
There is a strong body of case law in the lower federal courts that a statute passed to combat sex discrimination can also be used to combat discrimination on the basis of gender identity. But almost all these cases involved adults in the context of employment discrimination. Grimm’s case is the first involving transgender students, schools and restrooms.
If the case were to go forward, Justice Anthony Kennedy’s vote would be critical. Kennedy wrote all four gay/lesbian rights cases, but he often has sided with the Court’s conservatives on questions surrounding the interpretation of federal anti-discrimination statutes. Whereas the gay/lesbian rights cases allowed Kennedy to wax poetic about ennobling constitutional principles like “equal dignity” and the liberty of adults to engage in private intimate relationships, he may see a different balance of interests in this case, which involves schools, the meaning of statutory text and questions about privacy and modesty in facilities used by children.
A 5-3 victory for Grimm, including Kennedy’s vote, would be huge, but it seems like a very long shot, as even Grimm’s attorneys apparently believe. A 4-4 split between the Court’s conservatives and liberals, the most likely outcome, would leave the Fourth Circuit decision in place but make no precedent. Even the justices who have been strongly pro-gay/lesbian rights, and who probably would conclude as a general matter that Title IX should protect transgender students from discrimination, may see the specific issues in this case as more sensitive and difficult. If one of the four liberal justices were to join the conservatives in voting to reverse the Fourth Circuit, it would be a very big setback legally – and would inevitably be perceived as an even greater setback morally – for the trans equality movement.
It took at least four justices to agree to review the Fourth Circuit’s decision in favor of Grimm, and it seems likely those votes came from the four conservatives, including Kennedy. And so a silver lining of Trump’s decision to rescind the Title IX guidance could be that it lowers the stakes of Grimm’s case and persuades one or more of these justices to change their minds.
Schools are just one facet of the larger movement for transgender equality. Unlike the marriage equality decision in Obergefell v. Hodges, which provided the last word after years of litigation on the most difficult question of gay/lesbian equality, a Supreme Court decision one way or the other in the Grimm case would not settle a cultural conflict, it would likely inflame it.
Religious conservatives, having been resoundingly defeated on the question of same-sex marriage, have made attacks on the dignity of trans people the new front in their culture war. The strategy is focused on belittling the problems of transgender people and stirring up fears about the implications of giving them legal rights. It drives even serious thinkers like the Heritage Foundation’s Ryan Anderson to tweet about things like the amount of child nudity in school locker rooms and athletic underwear.
The narrative on the right is premised on the complete denial of the phenomenon of gender identity as distinct from biological sex. To an appalling degree, it remains acceptable for right-wing propagandists such as Sean Davis and Ed Whalen to mock and belittle transgender people – to dismiss them as “men who think they’re women” or “girls who think they’re boys.” By such thinking, gender identity is nothing more than a casual choice – the same argument the religious right once made, and many Americans once believed, about sexual orientation. (To its credit, the Supreme Court Clerk’s Office last week rebuked several far-right organizations, including the hate group Liberty Counsel, for intentionally misgendering Gavin Grimm on the covers of their amicus briefs.)
It is becoming clear that most Americans oppose discrimination against trans people as a general principle. But it would be imprudent to consider the matter settled on all fronts, or to underestimate the potential for backlash measures in state legislatures and Congress. Every civil rights movement has had to find a balance among litigating, legislating, and public education. These processes work synergistically to change hearts and minds.
Time will demonstrate that, as with marriage equality, the political right is on the wrong side of history. Emerging data about the number of transgender people in the United States and about their experiences of discrimination will educate and will open eyes. The science and objective knowledge behind gender identity will improve. More Americans will realize they know transgender people of all ages and count them in their own families. They will learn to see past scare tactics and bad arguments. But a premature decision from the Supreme Court right now would most likely set back, not advance, this progress.
Steve Sanders recently moderated a program at Maurer – video available here – on “Dignity, Law, and Transgender Lives,” which included Gavin Grimm’s lead attorney, Joshua Block, and Jody Herman of the Williams Institute.