The Trump Administration May Have Doomed Gavin Grimm's Case

The Supreme Court sent an important case concerning a transgender student in Virginia back down to the Fourth Circuit Court of Appeals on Monday, in part because of the Trump administration’s new position on the issues involved in the case.

In Gloucester County School Board v. G.G., Gavin Grimm sued his school district for the right to use the boys’ bathroom, which corresponds with his gender identity. Under the Obama administration, it looked like Grimm might have a strong chance of success at the country’s highest court, potentially setting a precedent for school districts across the country. Now, that’s looking less likely.

The Trump administration has rolled back Obama’s former policies, meaning that transgender students like Grimm may have to follow policies on bathroom use and other accommodations set by individual school districts.

Grimm’s case has been winding its way through the court system for nearly two years. In the summer of 2015, a federal district court dismissed Grimm’s claims. The judges’ decision turned on their interpretation of Title IX of the Education Amendments of 1972, which prohibits sex discrimination in schools that get federal funds. Courts have disagreed about the meaning of sex discrimination: Some have held that it covers gender identity, meaning that it prohibits discrimination against transgender people like Grimm. Others, like the district court in Grimm’s case, have disagreed. The Obama administration supported the inclusive interpretation, instructing schools to accommodate transgender students.

Last April, the Fourth Circuit Court of Appeals handed down a decision in Grimm’s favor: They held that the courts should defer to the administration’s interpretation of Title IX, meaning in effect that Gloucester County should have to let Grimm use the bathroom of his choice. The Supreme Court stayed the opinion and the school district appealed. In October, the Supreme Court agreed to hear the case. Arguments were set for late March.

But in February, the Trump administration withdrew the Obama administration’s guidance, arguing that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.” This was a clear sign that Trump is backing away from the Obama administration’s inclusive interpretation of Title IX, favoring the previous status quo in which individual school districts decided how to deal with transgender students according to state and local laws.

While Grimm’s attorneys encouraged the Supreme Court to move forward with the case despite the Trump administration’s new letter, the justices declined to do so on Monday, remanding the case back to 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 Supreme Court’s decision not to hear the case at this point is a sign that this issue is likely to remain unresolved, at least for the near future. The courts have long been conflicted about the meaning of Title IX and other civil-rights statutes that deal with sex discrimination, in part because the law is arguably unclear about what sex discrimination means.

In wrestling with cases like Grimm’s, they have consistently looked to the executive and legislative branches for guidance. So far, Congress hasn’t passed a law that clearly and incontrovertibly prohibits gender-identity discrimination in the context of education, employment, or other arenas. In practice, that has meant the White House and other agencies have had an outsized influence in determining how cases like Grimm’s should be handled.

With its guidance letter to schools, the Obama administration set up transgender kids for success in making anti-discrimination claims in court. That’s largely why Grimm was victorious at the Fourth Circuit. Now, the Trump administration has reversed their fortunes, making it less likely that students like Grimm will prevail. When Gloucester County is argued before the Fourth Circuit for a second time, Grimm will be missing much of the support that helped him win the first time—including the support of the White House.