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Supreme Court Punts on Transgender Bathroom Case

Lower court instructed to consider new guidance from Trump administration

The U.S. Supreme Court won’t decided a closely-watched case on transgender students and bathroom rights. (Bill Clark/CQ Roll Call file photo)
The U.S. Supreme Court won’t decided a closely-watched case on transgender students and bathroom rights. (Bill Clark/CQ Roll Call file photo)

The Supreme Court won’t decide a closely watched case on transgender students and bathroom rights, announcing Monday that a lower court should first consider new guidance from the Trump administration on the issue.

The justices were set to hear oral arguments March 28 in the case viewed as the next frontier in the legal fight for civil rights. A 17-year-old transgender boy, Gavin Grimm, seeks to overturn a Virginia school board’s policy that prevents him from using the boy’s restroom.

Instead, the issue became one of the first Supreme Court cases to have its fate dramatically altered by the election of President Donald Trump. The justices sent the case back to the U.S. Court of Appeals for the 4th Circuit “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice” on Feb. 22.

The Trump guidance document formally withdrew Obama administration directions on how schools should address transgender rights under Title IX of a 1972 anti-sex discrimination law. The Trump administration rescinded an Obama administration opinion letter from January 2015 on how the law should be applied that was central to the lower court’s decision in the Grimm case, as well as federal guidance issued in May 2016.

Even after the Trump administration action, both sides in the case had encouraged the court to decide the key remaining issue: Does the 1972 law also provide protections for gender identity? The question has fueled legal challenges to state laws about transgender bathroom use and sparked a national debate.

The Supreme Court vacated that 4th Circuit decision in a one-paragraph order, without any other explanation, note of dissents or vote among the justices.

The action does not end the case. But it likely means Trump’s Supreme Court nominee, Judge Neil Gorsuch, would be on the bench by the time the issue returns to the high court, if he wins Senate confirmation.

Civil rights groups have warned that Gorsuch’s legal approach suggests his decisions would not be friendly to transgender rights.

The American Civil Liberties Union lawyer representing Grimm said he was “obviously disappointed,” but the Supreme Court’s action “is a detour, not the end of the road.”

“Unfortunately, this means that far too many trans kids across the country will be held in limbo for another 1-2 years,” ACLU attorney Joshua Block said on Twitter. “We (and other orgs) will continue to fight for Gavin and other trans kids in court anywhere in the country.”

The case is Gloucester County School Board v. G.G., Docket No. 16-273.

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