In a one-sentence statement, the United States Supreme Court announced that it would not hear a major case involving transgender access to the restrooms corresponding to gender identity as opposed to biological sex. The decision cited a document issued by the Trump administration reversing a transgender guidance issued under President Barack Obama’s administration.
“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017,” the court announced.
The case, Gavin Grimm v. Gloucester County School Board, centered on whether Gavin Grimm, a biological girl who identifies as a boy, can use the boy’s restroom. The new transgender guidance issued by the Trump administration in late February reversed a long trend in the Obama administration reinterpreting federal law against sex discrimination to mean discrimination on the basis of gender identity.
The Obama transgender guidance started in late 2014, when the Department of Education (DOE) decreed that “all students, including transgender students and student who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.” The guidance insisted that a school or school district which receives federal grants “must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”
Last May, after North Carolina Governor Pat McCrory signed House Bill 2 (a law reserving non-single-stall restrooms on the basis of biological sex), the Department of Justice (DOJ) said the law institutionalized discrimination on the basis of sex in public schools. Further guidance from the DOJ and DOE clarified this interpretation.
This move represented a quasi-Orwellian redefinition of terms after the fact. “Sex” or “biological sex” refers to a human being’s chromosomal makeup, and is either male (one “x” and one “y” chromosome) or female (two “x” chromosomes). “Gender,” by contrast, deals with identity, and extends to “transgender” (identifying with the gender opposite one’s biological sex) and “cisgender” (identifying with the gender that fits one’s sex).
Discrimination on the basis of sex means having a double standard between the biological sexes. It does not mean refusing to acknowledge a person’s gender identity. The laws passed by Congress in 1964 and 1971, the Civil Rights Act and Title IX of the Education Amendments of 1971, refer to discrimination on the basis of sex. Should Congress and the president seek to forbid discrimination on the basis of gender as well, they should pass a law doing so.
For this reason, in announcing Trump’s reversal of the Obama policy, White House Press Secretary Sean Spicer said revoking the old policy would enable the states to make their own rules on the controversial issue. Spicer noted that 13 state attorneys general had filed lawsuit against the Obama administration over the guidance last May. No fewer than 78 representatives sent a letter asking the Obama administration how it would enforce the transgender order.
The Supreme Court had agreed to hear the Gavin Grimm case in October, and it had been scheduled for arguments this month. It would have been the court’s first encounter with transgender issues. There are other cases on this issue in the pipeline, including a challenge to H.B. 2.
A district court dismissed Grimm’s claim under Title IX, but the U.S. Court of Appeals for the Fourth Circuit overturned that decision and ruled in favor of Grimm last August. The Gloucester County School Board petitioned to the Supreme Court. The high court’s ruling requests the court of appeals reconsider the case, given the Trump administration’s new guidance.
Most likely, this change will throw out Grimm’s claim under Title IX. But he, and the American Civil Liberties Union (ACLU) who is suing on his behalf, might argue the case on other grounds.