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The Supreme Court is asking the Fourth U.S. Circuit Court of Appeals to reconsider its decision in the case of Virginia transgender teen Gavin Grimm.
The court sent the case back to the lower appeals court on Monday, further delaying proceedings in Grimm’s case.
The Supreme Court noted that the Fourth Circuit had largely relied on the Obama administration’s interpretation of Title IX when it decided Grimm had a right to sue over the Gloucester County School Board’s policy barring him from the boys’ restroom.
That interpretation had served as the basis for subsequent guidance that encouraged schools to treat transgender students according to their gender identity, including with respect to which restrooms they are allowed to access.
The Trump administration recently rescinded that Obama-era guidance, arguing that individual states and school districts are best suited to determine their own policies on bathroom use and whether schools choose to acknowledge a student’s gender identity.
The new administration also rejects that Title IX applies to those discriminated against because they fail to adhere to gender stereotypes or social norms. Rather, they say, Title IX protects only those discriminated against because of their biological sex.
Once the case goes back before the Fourth Circuit, the court will consider whether Title IX applies to gender identity as well as biological sex. But if the court is to rule in favor of Grimm once again, it must reject a narrow, literal reading of the statute, and rule that Title IX is meant to be interpreted more broadly than written.
Lawyers for Grimm and for the Gloucester County School Board had urged the Supreme Court to move forward with oral arguments in the case, as both sides felt — regardless of which interpretation the Obama or Trump administrations chose to adopt — that the issue would not be resolved until the high court made a decision about the scope of Title IX.
The delay in oral arguments also has political implications: If the 4th Circuit issues a decision in favor of Grimm, and the case goes back to the Supreme Court, his Title IX claim will be heard by a full nine-member court that includes Neil Gorsuch, reports The Washington Post.
Gorsuch, who was tapped to fill the seat left vacant by the death of Antonin Scalia, is beloved by conservatives who believe he will adhere to a literal and strict constitutionalist reading of the law.
But Joshua Block, senior staff attorney for the American Civil Liberties Union’s LGBT Project and the lead counsel for Grimm, said in a statement that the Supreme Court’s action had changed nothing.
“Title IX and the Constitution protect Gavin and other transgender students from discrimination,” Block said. “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.
“This is a detour, not the end of the road, and we’ll continue to fight for Gavin and other transgender people to ensure that they are treated with the dignity and respect they deserve.”
Stacey Long Simmons, director of public policy and government affairs at the National LGBTQ Task Force, called the Supreme Court’s decision to send the case back to the lower court “disappointing,” but also reiterated that the interpretation of the law should not change, regardless of the Trump administration’s difference of opinion on the matter.
“It is regrettable that the issue of equality for transgender Americans will not be heard by the highest court of the land,” added Mara Keisling, executive director of the National Center for Transgender Equality. “We are, however, confident that the Court of Appeals will again conclude — as most courts have — that anti-gender discrimination laws like Title IX protect transgender students and forbid schools from singling them out.
“It’s understandable that many Americans who are still not familiar with their transgender neighbors have questions. But there is simply no reason for Gavin, or the hundreds of thousands of students like him, to be forced to make a ‘walk of shame’ to a separate facility every single day,” said Keisling.
“We expect and urge all schools to meet their moral and legal responsibility to fully respect and include their transgender students, as thousands of schools around the country have already been doing for years.”
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