WASHINGTON — The U.S. Supreme Court returned a case involving a Virginia girl who identifies as a boy and wants to use the boys’ restroom at school back to the circuit court on Monday, effectively declining to hear the case after the Trump administration withdrew the Obama-era directive on “transgender” restroom use in public schools.
The court, without any note of dissent, also vacated the Fourth Circuit Court of Appeals ruling from last April, advising the panel to revisit the decision. The circuit court had based its ruling on the Obama administration’s interpretation of Title IX of the Education Amendments of 1972, which prohibits discrimination in federally-funded education programs based on the student’s sex.
“Except as provided elsewhere in this part, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives or benefits from federal financial assistance,” the law reads.
“A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex,” it also notes.
Oral argument before the nation’s highest court had been scheduled for March 28, but is now canceled.
“While we’re disappointed that the Supreme Court will not be hearing Gavin’s case this term, the overwhelming level of support shown for Gavin and trans students by people across the country throughout this process shows that the American people have already moved in the right direction and that the rights of trans people cannot be ignored,” ACLU attorney Joshua Black said in a statement.
“This is a detour, not the end of the road,” he remarked.
Attorneys for the school board said that they looked forward to defending their position in the lower court.
“On remand to the lower courts, the board looks forward to explaining why its common sense restroom and locker room policy is legal under the Constitution and federal law,” said Kyle Duncan.
As previously reported, the case centers around a Gloucester High School student who goes by the name Gavin Grimm. Three years ago, Grimm was directed to use the nurse’s restroom after she began identifying as a boy, but soon decided that she would rather use the boys’ restroom. Grimm is now a senior and will be graduating this summer.
“The nurse’s office is at least a three minute walk from the class I have closest to it. It took a substantial amount of time out of my class time, and it was embarrassing,” Grimm told reporters in 2014. “When you’re gone for 15 minutes at a time to use the bathroom, what are high schoolers gonna think? It’s humiliating and it’s alienating.”
The student therefore spoke to the principal about the matter, who suggested that Grimm go ahead and use the men’s restroom since she identifies as a boy. But some of the parents of the male students soon learned about the allowance, and the issue turned up before the school board.
Due to the concerns of parents, the board voted to approve a policy requiring students to utilize the restroom that correlates with their biological gender, or to use a private bathroom.
In response, Grimm sued the Gloucester County School Board with the aid of the American Civil Liberties Union (ACLU) in an effort to overturn the policy.
“By excluding Gavin—a transgender boy—from the boys restrooms because the school board does not deem him to be ‘biologically’ male, the school board, under color of state law, has treated and continues to treat Gavin differently from similarly situated students based on his gender,” the suit asserted.
Last September, District Court Judge Robert Doumar, appointed to the bench by then-President Ronald Reagan, ruled against Grimm, disagreeing with the ACLU that the board had violated Title IX with its restroom policy.
“Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation,” Doumar wrote.
The ACLU appealed the decision to the Fourth Circuit Court of Appeals, which ruled 2-1 in favor of Grimm in April by pointing to the Obama administration’s recent interpretations of the federal statute.
“A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity,” the Department of Education and the Department of Justice had written in outlining their interpretation of the law last May.
The Fourth Circuit then sent the case back to Doumar, who was instructed to rule in light of how the federal departments view the statute. Doumar consequently ordered the board to allow Grimm to use the boys’ restroom.
The Gloucester County School Board then appealed the order to the U.S. Supreme Court, asserting that it will cause “irreparable harm to the board, to the school system and to the legitimate privacy expectations of the district’s schoolchildren and parents alike.”
In August, the court granted the board’s request for an emergency injunction, and in October, it agreed to hear the case.
However, after the Trump administration rescinded the Obama-era restroom directives last month—stating that the guidance issued by the previous leaders of the education and justice departments did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process”—the court announced on Monday that it was sending the matter back to the Fourth Circuit for further consideration.
The lower court could, in turn, return the matter back to Doumar in the district court.
Christian groups applauded the development.
“We are very encouraged by the Supreme Court’s decision today. This was not about rights, but using Title IX for the wrong intent. Transgenders were not in mind when this law was put into effect to help women in sports,” Steve McConkey of 4 Winds Christian Athletics said in a statement.
“The Fourth Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers and restrooms,” also remarked Kerri Kupec of Alliance Defending Freedom (ADF). “School officials should be free to protect their students’ privacy, safety and dignity without federal government interference.”
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