In this Aug. 25, 2015 file photo, Gavin Grimm is interviewed at his home in Gloucester, Va. Grimm is a transgender student whose demand to use the boys’ restrooms has divided the community and prompted a lawsuit. | AP Photo
Both parties in a high-profile battle over transgender student rights want the Supreme Court to move forward with their case — despite the Trump administration’s decision to rescind an Obama directive aimed at protecting those rights.
Transgender student Gavin Grimm is suing Gloucester County School Board in Virginia for the right to use the boy’s bathroom at his high school — a right that the Obama administration held was protected by Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs.
In court filings Wednesday, the American Civil Liberties Union, representing Grimm, and the school board urged the court to provide some clarity on Title IX and whether it protects transgender students against gender identity discrimination.
The Supreme Court is set to consider March 28 whether it was right for a lower court to defer to the Obama administration’s interpretation of Title IX and whether that interpretation is correct. Both parties believe the second question needs resolving even after the Trump administration scrapped Obama’s directive.
“Delaying resolution of that question will only lead to further harm, confusion, and protracted litigation for transgender students and school districts across the country,” ACLU says in its brief. “Another few years of needless litigation would not help clarify the legal question facing the Court, and it would impose enormous costs on individual students until the Court provides additional clarity.”
The school board, which believes Title IX only protects against discrimination on the basis of biological sex, agreed with ACLU in that clarity from the court “will save the parties — as well as public and private parties involved in similar disputes throughout the nation — enormous litigation costs as well as needless and divisive political controversy.”
The Obama administration issued its directive last May, telling schools that they must allow transgender students to use bathrooms consistent with the gender identities. The move prompted nearly half of states to sue over the issue.
The Trump administration’s move to rescind that directive could result in the Supreme Court sending the matter back down to a lower court.
In rescinding the Obama guidance, the Trump administration skirted the thorniest legal issue, like whether transgender students are protected by federal law. White House press secretary Sean Spicer, however, sent conflicting messages when he said the administration’s action “obviously sends a signal to the court on where the administration stands on this issue.”
Gloucester Country School Board writes in its brief that the Supreme Court should ask the U.S. Solicitor General to “file a brief expressing the views of the United States. It would be unusual for the court to address questions of the sort presented here without first hearing from the Solicitor General.”
The school board is also asking the court to delay oral argument, “especially when a new solicitor general has not been nominated.”
If oral argument is delayed and Trump’s pick to fill the court vacancy, Judge Neil Gorsuch, is confirmed in the meantime, it would make for five Republican-appointed justices on the court, compared to the current four. Justice Anthony Kennedy, however, has previously swung left on LGBT rights and could give the four liberal justices a majority.