Friend-of-the-court briefs were filed before the Supreme Court in the Gavin Grimm case. Photo courtesy of American Civil Liberties Union of Virginia

Justice Delayed in Gavin Grimm Case, But For How Long?

by Chris Johnson, Washington Blade

The U.S. Supreme Court's decision to scrap a case on bathroom access in schools has left transgender people waiting in the wings for a nationwide ruling affirming their rights and no clear path or timing for when the day will come.

Two years after the Supreme Court affirmed the right of same-sex couples to marry, hopes are dashed for a similarly monumental ruling in favor transgender rights this year -- perhaps indefinitely.

Gavin Grimm, the plaintiff transgender student seeking to use his high school boys' room consistent with his gender identity, said during a conference call Monday despite the high-profile nature of his lawsuit coming to an end, he's glad he could take part.

"Going through this in my senior year has been definitely stressful," Grimm said. "I, of course, never wanted to be in this fight, but I don't have any regrets with respect to what I've done. I think everything has been totally worth it, but it's just frustrating that I'm in this position at all."

In light of the Trump administration revoking Obama-era guidance from the Justice and Education Departments assuring transgender students access to school restrooms consistent with their gender identity, the Supreme Court remanded Grimm's case for reconsideration before the U.S. Fourth Circuit Court of Appeals. The federal appeals court's ruling relied heavily on the guidance, but the situation has changed now that Trump has revoked it.

Joshua Block, who represents Grimm as a senior staff attorney for the American Civil Liberties Union, said the Supreme Court's action is "justice delayed, not justice denied" and even though the outcome isn't the one sought before the Supreme Court, Grimm's lawsuit has still put a national spotlight on issues facing the transgender community.

"Over the past few weeks, I think we have accomplished an incredible amount in making people see transgender students, see the reality of their lives, see that they are not sexual predators in a dress, see that they are children just like any other child," Block said. "I think that being able to allow Gavin and allow so many other trans kids and so many other families share their stories with the public...has done an enormous amount of good."

Now that the case has been remanded to the Fourth Circuit, Block said he expects the court to issue a briefing order in the new few days and the opportunity to file supplemental briefs on whether Title IX of the Education Amendments of 1972 continues to protect transgender students in the aftermath of the Trump administration withdrawing guidance asserting those protections.

The next time the Fourth Circuit holds a sitting and the opportunity for oral arguments is May. If the Fourth Circuit rules on an expedited basis, the injunction could come down that month, allowing Grimm to use the restroom at his high school consistent with his gender identity for one month.

Jay Holland, a civil rights attorney with the D.C.-based firm Joseph Greenwald & Laake, said, however, the federal appeals court "will take some time" to rule and "this isn't going to be decided by the Fourth Circuit or the Supreme Court anytime soon, most likely."

"Assuming the Fourth Circuit asks for the case to be rebriefed in light of the removal of the guidance, and given where we are in the Fourth Circuit's calendar for the year, it wouldn't be surprise me -- it's entirely up the court, they could expedite it -- but it wouldn't surprise me if this didn't occur, including all the briefing and oral arguments, and finished until the fall term," Holland said.

Grimm's case is now one of several cases percolating through federal courts seeking to affirm transgender kids can use the restroom in schools consistent with their gender identity.

Others include the cases of Whitaker v. Kenosha Unified School District, which is pending before the U.S. Seventh Circuit Court of Appeals, and Doe v. Board of Education of the Highland School District, which is pending before the U.S. Sixth Circuit Court of Appeals. Last week, a federal judge ruled in favor of Juliet Evancho -- the sister of Trump inauguration singer Jackie Evancho -- who along with two other plaintiffs sued their Pennsylvania high school to use the restroom consistent with their gender identity.

Also ongoing are the related lawsuits -- one filed by the U.S. Justice Department, another by the ACLU, ACLU of North Carolina and Lambda Legal -- against North Carolina's House Bill 2, a state law that bars transgender people from using the restrooms in school and government buildings consistent with their gender identity. (It seems unlikely the Justice Department will continue its case with newly confirmed U.S. Attorney General Jeff Sessions at the helm. Just this week, the department took a step back in the case by withdrawing its request for a preliminary injunction against the law.)

It's hard to say when as a result of this litigation the Supreme Court would, if ever, grant certiorari to hear a case that would enable a nationwide ruling in favor of allowing transgender people to use the restroom consistent with their gender identity.

The losing parties in each of the cases before federal appeals courts could seek "en banc" rehearings of the litigation, which would eat up additional time before the case would reach the Supreme Court. Although it's conceivable a petition for certiorari could reach the Supreme Court in time for a ruling in 2018, the high court may not agree to take it up if each of the circuit courts are ruling in a consistent way that justices deem is compliant with the law.

Holland said the Supreme Court will reexamine the legal landscape when and if another petition for certiorari is filed before the Supreme Court on bathroom access for transgender people.

"Is there a conflict between the circuits, is there a conflict between the district court decisions and circuit court decisions of various circuits and states, so is there a question indeed for the Supreme Court to decide?" Holland said. "If there's no conflict between the circuits and all the circuits are going one way or the other, the Supreme Court could well decide this is not a case that's right to even go back to."

Meanwhile, bills seeking to bar transgender people from using the restroom consistent with their gender identity continue to move through state legislature.

In Texas, a Senate committee on Wednesday approved anti-trans Senate Bill 6 after hearing testimony on the legislation during the previous day. Mirroring North Carolina's House Bill 2, SB6 guts existing municipal non-discrimination protections in public accommodations from transgender people and bars them from using the bathroom consistent with their gender identity in public spaces, such as public schools, open enrollment charter schools, government buildings and public universities.

Transgender rights supporters insist that even without an affirmative ruling from the Supreme Court, the prohibition on sex discrimination under Title IX based on legal precedent has and will always continue to bar schools from discriminating against transgender students or denying them access to the restroom consistent with their gender identity.

Ilona Turner, legal director for the San Francisco-based Transgender Law Center, was among those saying the underlying law protects transgender students even without an affirmative ruling from the Supreme Court.

"It's unfortunate that the Supreme Court did not take this opportunity to clarify once and for all that transgender students are protected under Title IX, but this doesn't change the fact that the vast majority of other courts do look at this issue, have concluded that transgender students are protected under existing federal non-discrimination laws, so it doesn't have a significant practical effect in terms of the law," Turner said.

Even though the Fourth Circuit once deferred to the Obama-era guidance to determine Title IX applied to Grimm, Turner said courts won't give the same deference to the Trump administration's letter undoing that guidance. The letter, Turner said, doesn't meet requirements for deference under the precedent of the 1997 Auer decision of being long-standing guidance.

One question is whether Grimm will still have standing in the case if the litigation is drawn out under consideration before the Fourth Circuit. After all, he is set to graduate from high school this year, which may occur before the lawsuit is resolved and potentially could remove any live conflict from the case.

If the case is prolonged after Grimm graduates, Block saidthe apparent lack of conflict isn't an issue because the lawsuit seeks relief not only for Grimm to use the restroom as a student, but also nominal damages from the school and injunction assuring him access to the boys' room as an alumnus.

"In terms of an injunction, most people go home from college to a reunion event at their high school," Block said. "It would be great if Gavin was able to use the bathroom when he goes to his reunion. So I think that the injunctive relief does remain a significant issue and a time-sensitive one, just given the way that life works."

Another question is whether Grimm's case or any other transgender lawsuit will be ill-fated at a later time before the Supreme Court if the U.S. Senate confirms to the bench Trump's nominee U.S. Circuit Judge Judge Neil Gorsuch. The nominee, whom LGBT rights groups oppose, has a history of ruling in cases for "religious freedom" in a way that suggests opposition to LGBT rights in the future.

Block confidently said he doesn't think Gorsuch's confirmation to the Supreme Court would make a difference "because we would win the other eight justices regardless," or at least the same justices who ruled for same-sex marriage.

"I think that if the same lineup for this case is similar to the lineup where the court has ruled for same-sex couples, then I think it's just the difference between a 5-3 decision and 5-4 decision," Block said. "I think if the only change on the court that happens is the addition of Judge Gorsuch, I think that would probably leave things where they currently are."

Even if an ultimate resolution from the Supreme Court doesn't happen for another decade, Grimm said he's willing to stick with the case to ensure a favorable outcome for transgender students nationwide.

"Obviously this is not what we wanted and it's disappointing that it's going to drag out this conversation for even longer, which is going to keep trans kids that are in school right now and that are coming into school age, is going to keep them in limbo for an extended period of time, but I am still as passionate and happy to be doing this as ever," Grimm said. "I think that everyone is just empowered and ready for it as we've always been, and if it took 10 years I'd stick with it."

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association.This article originally appeared in the Washington Blade and is made available in partnership with the National Media Association.
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