Transgender Bathroom Rights: The Supreme Court and the Trump Administration

By Eleanor Spencer

Following Donald Trump’s inauguration on January 20, 2017, many Americans are looking closely to see how the incoming administration will handle various important issues that are facing this country. One of these issues concerns discrimination against transgender individuals, specifically in regard to access to the bathroom that conforms to their gender identity.

On October 28, 2016, the Supreme Court added to its docket Gloucester County School Board v. GG, a case filed by the American Civil Liberties Union (ACLU) on behalf of Gavin Grimm, a transgender male student at Gloucester High School in Virginia. The case is challenging a school board policy that requires students to use the restrooms and locker rooms that match their “biological sex” (the gender they were assigned at birth), or to use one of a few gender neutral bathrooms on campus. The ACLU is arguing that the school’s bathroom policy is unconstitutional under the Fourteenth Amendment and also violates Title IX of the U.S. Education Amendments of 1972, a federal law that prohibits sex discrimination by schools.

During his sophomore year, Gavin Grimm, now seventeen, began to reintroduce himself to his peers at school as a boy. His mother notified the Gloucester High School principal of Gavin’s transition and that he would like to start using the boy’s restroom at school. The principal granted Gavin permission to do so. For many cisgender individuals, those who identify with the gender they were assigned at birth, using a particular public bathroom may not seem very important. But to transgender individuals, this can be a very big step in living their life in a way that finally makes them comfortable. Gavin described using the bathroom at school as great and as the “natural progression of things.” He used the boys’ bathroom for two months without issue but in the Fall of 2014, the school received complaints from parents and residents of Gloucester County. The school board’s response was to adopt the current, controversial policy despite warnings from the ACLU.

A preliminary injunction motion was filed by Gavin and his mother asking for the court to allow Gavin to continue using the boys’ restroom for his junior year. The school board filed a motion to dismiss the case. The district court ruled against Gavin and found that Title IX regulations allowed schools to have separate restroom facilities for male and females based on “sex.” Therefore, by requiring Gavin to use the restroom consistent with his “sex,” which is female in the school district’s eye, the district did not violate the law. This was decided notwithstanding a 2015 opinion letter from the Department of Education’s Office of Civil Rights (“OCR”), which stated that if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” (OCR and the U.S. Department of Justice later issued a Dear Colleague Letter on Transgender Students.) The U.S. Court of Appeals in the Fourth Circuit reversed and ruled for Gavin after considering the opinion letter and a previous case, Auer v. Robbins, which held that courts should generally defer to an agency’s interpretation of its own regulation. Auer is a case that is controversial for conservatives. The school district then appealed to the Supreme Court.

This is one of the most high-profile cases the Court has agreed to hear since Justice Antonin Scalia passed away in February 2016. The Court issued a new briefing schedule in December which makes it likely that arguments will be heard in either March or April. This is significant for a couple of reasons. The first of which is that it is unlikely Gavin will get to benefit from a ruling in his favor, if that were to be how the Court ruled, because Gavin will likely have finished and graduated high school by that point. However, a ruling in his favor could go on to benefit him later in life, if he were to attend university for example, and it will certainly benefit other transgender students in the future.

The date of the Court hearing the case is also significant because the composition of the Court it likely to change between now and then. Trump was inaugurated on January 20, 2017 with a Republican majority in the Senate, making it highly likely that a conservative nominee for the Supreme Court will be approved in a matter of months. Mike Pence has expressed that the transgender bathroom issue can be resolved at the local level, a sentiment he said Trump also shared. If Trump’s appointment also agreed and is approved in time, it is possible that he or she will vote to reverse the Fourth Circuit’s holding with the other conservative justices and allow the school board’s policy to stand. However, it is possible that when the Court hears the case there will still be the current eight justices. If that is the case, there could be a split between the justices which would leave the Fourth Circuit’s holding standing but it would not be a precedent for other courts outside the Fourth Circuit.

The date of arguments is also significant because it means that the Trump administration will dictate the federal government’s position in this case, rather than the Obama administration. The 2015 letter from the Department of Education was issued by the Obama administration and was central to Grimm’s argument and it was the basis for the lower court’s ruling in favor of Grimm. If the Trump administration decides to rescind the Department of Education letter or issue its own guidance on the issue, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance. Trump’s nominee to head the Department of Education, Betsy DeVos, has stated that she also believes that this matter should be settled at the state-level. DeVos has opposed marriage equality in the past and she and her family have donated over a million to Focus on the Family, an organization that promotes conversion therapy and has deemed transgender individuals “mentally ill.”

Putting aside the legal issues in this case, there is a lot at stake in regards to social issues. Over the past couple of years, transgender activism has become more mainstream and with this, the push-back from anti-transgender activists is becoming strong. Many states have passed laws similar to the Gloucester County school board’s policy that requires individuals to use the bathroom that is in accordance with the gender you are assigned at birth. These laws have been marked with harsh criticism and economic consequences. However, some of these laws still stand but organizations like the ACLU have promised to continue fighting them. The Supreme Court’s decision in Gloucester will have a large impact on transgender individuals across the country and it is a decision that many will be anxiously waiting for.