The Supreme Court will not be deciding which bathrooms transgender school students will be using after all.
Credit or blame (depending how you feel) President Donald Trump administration’s change in guidance. In February, Attorney General Jeff Sessions rescinded a guidance letter from President Barack Obama’s administration ordering public schools to accommodate transgender students in the bathrooms and facilities of their chosen sex.
The guidance initially prompted resistance and lawsuits from several states. The Supreme Court had agreed to hear the case of Gavin Grimm, a Virginia high school transgender student suing his district for permission to use the male facilities. But part of the case revolved around whether the courts should defer to the Obama administration’s interpretation of Title IX. After the Trump administration eliminated that guidance, that question the court had planned to consider became muddled. The court asked both sides how they wanted to proceed. Both sides asked the Supreme Court to hear the case anyway in order to determine whether the sex discrimination protections of Title IX also protected transgender students and demanded accommodation.
But clearly the Supreme Court was not ready to establish what might have been a far-reaching precedent. Today they vacated Grimm’s case and bounced it back down to the 4th Circuit to be reconsidered in the wake of the Obama administration’s guidance being rescinded.
Fundamentally this means that Grimm’s side has had an influential argument taken away. The decision in his favor was due to the court’s deference to the executive branch.
But to be clear, while there’s at least a procedural setback here, it doesn’t necessarily mean Grimm can’t win again. While the Obama administration arguably overreached trying to push transgender accommodation on all the schools in the entire country with just a couple of memos, they didn’t invent the sex discrimination arguments that have come into play in the case. A previous Supreme Court precedent determined that discrimination on the basis of whether somebody exhibited “stereotypical” gender traits counted as sex-based discrimination. There have been cases—prior to the Obama administration—where courts have determined that discrimination on the basis of somebody being transgender falls under this category of discrimination on the basis of gender stereotypes. The Obama administration used those cases as part of the foundation for their guidance.
So Grimm’s side will still be able to point to those cases, even without a supporting administration behind him. It does mean, though, that Supreme Court is resisting a push to establish a national precedent for the moment. Joshua Block, Grimm’s counsel from the American Civil Liberties Union (ACLU) responded, “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.”
Eventually Grimm (or some other case) may end back up at the Supreme Court if different federal districts disagree on whether Title IX protects transgender students. But it looks like we won’t be getting a definitive court decision anytime soon.