On Monday, March 6, the Supreme Court issued an order in a carefully watched case about the rights of transgender students. The order essentially decided not to decide the case, leaving many observers and activists on both sides of the issue somewhat confused about why the Court acted as it did, and where the case goes from here.
To understand what just happened, it’s critical to understand the facts of this case, and the basis on which it was decided below.
The facts of the case are relatively simple. Gavin Grimm is a transgender boy who attends Gloucester High School in Virginia. Gavin’s gender identity is male, and he began to transition during his sophomore year of high school. As his outward appearance became more congruent with his identity, Gavin grew increasingly uncomfortable using women’s restrooms – and found that women and girls were becoming increasingly uncomfortable with his presence there. When he asked his high school principal for permission to start using the boys’ restroom, he was given the go-ahead, and things seemed fine – for a while.
Eventually, some community members found out that Gavin had been granted permission to use the boys’ restroom, and a municipality-wide controversy erupted over the school’s decision. During a series of public meetings, the School Board heard often hostile testimony from community members about whether it should pass a policy prohibiting Gavin from using the restroom of his choice. Ultimately, the School Board passed the policy, and Gavin sued, alleging violations of Title IX and the Equal Protection Clause of the US Constitution’s Fourteenth Amendment.
Title IX of the Education Amendments of 1972 is a federal law that protects people against sex discrimination in educational programs or activities receiving federal funds. Broadly, the law prohibits sex discrimination in public schools like Gavin’s. However, further administrative rulemaking has made it clear that Title IX does not prohibit some sex-segregated facilities, like restrooms, showers, and locker rooms.
Gavin’s Title IX claim hinges on the question of where, in a permissibly sex-segregated space, he and other transgender students belong. The School Board’s position is that they can force him to either use a unisex bathroom, or use girls’ facilities because he was assigned female at birth. His position is that he belongs with the boys, because he identifies and presents as male. Neither interpretation is inarguably the correct one under either Title IX or its regulations.
The District Court decided to hold off on hearing the Equal Protection claim, but sided with the School Board on the Title IX question. However, the Court of Appeals for the Fourth Circuit disagreed. It determined that the lower court had not given sufficient deference to guidance that had been disseminated by the Department of Education’s Office of Civil Rights. That guidance, in the form of an opinion letter, had sought to clear up the ambiguity in the law by asserting that, in the case of sex-segregated facilities, schools “generally must treat transgender students consistent with their gender identity.”
Which brings us to the recent Supreme Court decision. When the Court first agreed to hear the case, the transgender-affirming guidance was still the last word from the Department of Education. Thus, the questions posed to the Court centered largely on the appropriate degree of deference to give to that guidance. But the new administration just threw this case a major curveball, by rescinding its earlier guidance. This left the Supreme Court with a case whose terms had changed dramatically.
Because the Fourth Circuit’s decision was so dependent on the existence of the now-defunct guidance, the Supreme Court decided that the best course of action was to remand the case back to the Fourth Circuit, in essence to re-think the matter without the guidance in place.
Thus, this decision isn’t so much a loss as it is a kind of detour. The Fourth Circuit now has to consider the matter once again, this time without the somewhat easy out that the guidance had provided. It will be fascinating to see this appellate court grapple more directly with some very basic, and very consequential questions about the meaning of “sex” and the degree to which gender-variant Americans get the chance to determine their own place in a world that is often reluctant to make space for them.