Supreme Court Sends Grimm Case Back to Lower Court

 

Less than two years after making marriage equality the law of the land, the Supreme Court seemed poised to further weigh in on LGBT rights in the case of G.G. v. Gloucester County School Board. In this case, Gavin Grimm, a transgender boy, sued his school district for the right to use his school’s men’s restroom. Last October, the 4th Circuit Court of Appeals granted Grimm that right, and the school board appealed. As recently as last week, there were positive signs that the case was proceeding. The court clerk even kicked back amicus briefs filed in support of the school board by Liberty Counsel and the Center for Constitutional Jurisprudence for misgendering Gavin in their captions. Then on Monday, just weeks before the case was to be argued, the Supreme Court issued a one-sentence ruling vacating the 4th Circuit’s judgment and remanding the case for further consideration.

While Grimm’s complaint raised claims under both Title IX and the Equal Protection clause of the 14th Amendment, in issuing its ruling the 4th Circuit relied heavily on a guidance issued by the Department of Education and Department of Justice under President Obama. That guidance instructed schools that their “Title IX obligation to ensure nondiscrimination on the basis of sex requires [them] to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” The Supreme Court decided that since the Trump administration has rescinded that guidance, the lower court must re-decide the case without relying on it for their decision. Of course, the 4th Circuit could still find for Grimm, without the backing of the administration. It could simply find that the Board’s policy is a form of sex-based discrimination against Grimm that is prohibited under Title IX, and that the Board’s policy arguments to the contrary (such as concerns about students’ privacy in locker rooms and inclusion on sports teams) are insufficient justification.

Amicus briefs filed on Grimm’s behalf offer ample grounds for granting his request. The NAACP’s brief powerfully calls focus to the US’s bigoted history of bathroom segregation, noting,

“Not so long ago, bathrooms nationwide were designated ‘Colored Only’ and ‘Whites Only.’ A key lesson of that painful and ignoble era is that while private-space barriers like racially segregated bathrooms may have seemed to some like minor inconveniences or insignificant sources of embarrassment, they were in fact a source of profound indignity that inflicted deep and indelible harms on individuals of both races, and society at large.”

More than 50 major corporations, including Apple and Microsoft filed a brief to point out that the Gloucester County School Board’s policy harms their commercial interests, as well as their interest in students who have been educated to “value and respect each other, no matter their differences. A brief by scholars who study the transgender community gives a strong scientific background to the argument that “discrimination against transgender students is, as a factual matter, discrimination based on sex.” PFLAG’s brief offers a number of powerfully moving accounts by parents of transgender children laying out the harm transgender students suffer when their gender identity is not affirmed.

In this procedural back-and-forth, it is important not to lose sight of what is actually at stake here. The right for transgender individuals to use facilities that correspond with their gender identities is about more than just convenience.

(Although we should not minimize or mischaracterize these concerns either; Grimm suffered repeated urinary tract infections as a result of holding his urine in order to avoid using school bathrooms.) It signals a broader social acceptance that can literally be a matter of life and death for trans teens. This February, the Journal of the American Medical Association published a study finding a pronounced drop in LGBT teen suicides associated with the passage of state marriage equality laws. A finding for Grimm would have been a strong sign of acceptance with a similar effect on the suicide rates of trans teens, who attempt suicide at rates up to ten times higher than their cis counterparts. The sooner we send the transgender community this message of acceptance, the better.

 

Photo Credit: Torbak Hopper via Flickr (Creative Commons)

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Michael is a 1L at HLS. He is interested in LGBTQ rights and immigrant rights. Michael is involved in Harvard's Immigration Services Project and volunteers through Harvard Lambda at the Y2Y youth homeless shelter in Harvard Square.

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