The U.S. Supreme Court agreed to hear its first major case on transgender rights on Friday.
The case, Gloucester County School Board v. G.G., centers on Gavin Grimm, a 16-year-old transgender boy who attends a high school in eastern Virginia. Grimm was born biologically as a female but identifies as male. After he began transitioning, he also started to use the boys’ bathroom at his school. The school board, responding to complaints by some parents, then passed a policy that requires students to use the bathroom of their “biological gender.”
Grimm sued the school board in federal court, arguing that the policy violated the Fourteenth Amendment’s equal-protection clause as well as Title IX, which forbids sex discrimination in public education. The Fourth Circuit Court of Appeals sided with Grimm in April, citing an Education Department official’s unpublished letter that argued Title IX covers gender identity. In August, the Supreme Court stayed that ruling while the justices considered the school board’s petition to intervene.
In their order granting review of the case, the Court limited its consideration to two issues: first, whether courts should defer to unpublished letters like the one cited by the Fourth Circuit, and second, whether the letter’s interpretation—that Title IX covers discrimination on the basis of gender identity—is valid. The Obama administration adopted the letter’s interpretation of Title IX in May.
That framing could give the Court an opportunity to issue a landmark ruling on transgender rights. As my colleague Emma Green noted in August, lower courts have been divided on whether existing civil-rights laws cover discrimination against transgender men and women. The federal government is currently locked in a major legal battle with North Carolina over HB 2, a state law that overturned local bans on LGBT discrimination and forbade schools districts from letting students use bathrooms or locker rooms that don’t correspond to their birth certificates.
If the justices deadlock in a 4-4 split, the Fourth Circuit’s ruling would be upheld without setting a nationwide precedent. When the Court issued its stay in August, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan dissented and Justice Stephen Breyer wrote that he had provided the necessary fifth vote as a courtesy. That may suggest the Court’s liberal and conservative wings are already divided on the issue. Only four justices’ votes are needed to accept a case for review.