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WASHINGTON The Trump administration’s move on
Wednesday to rescind guidance allowing transgender students to
use the bathrooms of their choice has raised the stakes for an
upcoming U.S. Supreme Court case that could deliver a landmark
decision on the issue.
The court is due to hear oral arguments on March 28 on
whether the Gloucester County School Board in Virginia can block
Gavin Grimm, a female-born transgender high school student, from
using the boys’ bathroom. A ruling is due by the end of June.
A key question in the case is whether a federal law, known
as Title IX, which bars sex discrimination in education, covers
transgender students. The Education Department under Democratic
President Barack Obama said in guidance to public schools last
May that it does, but the Republican Trump administration
withdrew that finding on Wednesday.
Lawyers for Grimm say that the definition of sex
discrimination in Title IX is broad and includes gender
identity. The school board maintains that the law was enacted
purely to address “physiological distinctions between men and
If the Supreme Court rules that Title IX protects
transgender students, the decision would become the law of the
land, binding the Trump administration and the states.
“This is an incredibly urgent issue for Gavin and these
other kids across the country,” said Joshua Block, a lawyer with
the American Civil Liberties Union (ACLU) who represents Grimm.
The Trump administration’s announcement “only underscores
the need for the Supreme Court to bring some clarity here,” he
The administration on Wednesday did not offer its own
interpretation of Title IX, with the Justice Department telling
the court only that it plans to “consider further and more
completely the legal issues involved.”
The administration is not directly involved in the case.
Lawyers for both Grimm and the Gloucester County School
Board have urged the court to decide whether Title IX applies to
transgender students rather than taking a narrower approach by
sending the case back to a lower court.
In a court filing on Thursday, the ACLU said that,
regardless of the administration’s position, the court “can –
and should – resolve the underlying question of whether the
Board’s policy violates Title IX.”
The school board’s lawyers made similar comments in their
most recent court filing, saying that the meaning of the federal
law is “plain and may be resolved as a matter of straightforward
But the court could take a more cautious approach and send
the case back to the Richmond, Virginia-based 4th U.S. Circuit
Court of Appeals. That court’s April 2016 ruling in favor of
Grimm relied on the Obama administration’s interpretation of the
Kyle Duncan, a lawyer representing the school board, said
the court must at a minimum throw out the appeals court decision
because “the entire basis for that opinion” was the no-longer
extant Obama administration interpretation.
JUSTICE KENNEDY: PIVOTAL VOTE?
With the eight-justice court likely to be closely divided,
Trump’s Supreme Court nominee, conservative appeals court judge
Neil Gorsuch, could end up casting the deciding vote if he is
confirmed by the U.S. Senate in time. Otherwise, the court,
which is divided equally between liberals and conservatives,
could split 4-4, which would set no nationwide legal precedent.
Clues as to how the high court could rule can be gleaned
from its decision last August to temporarily block the appeals
court decision in Grimm’s case from going into effect. That
emergency request from the school board did not require the
justices to decide the merits of the case.
The vote in favor of the school board was 5-3, with Justice
Stephen Breyer, a liberal, joining the four conservative
justices. Breyer made clear in a statement at the time that his
vote would not dictate how he would approach the case if the
court took the issue up.
That decision indicated that the court is likely to be
closely divided at oral argument. Grimm’s hopes may rest in
Justice Anthony Kennedy, a conservative who voted against Grimm
last summer but has sometimes sided with liberals in major
cases, including several on gay rights.
But even lawyers closely following the case are not sure
which way Kennedy could go.
“If I could predict that, I would be down in the casino,”
said Gary McCaleb, a lawyer with conservative Christian legal
group Alliance Defending Freedom, which backs the school board.
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