States Weigh in on Supreme Court School Transgender Accommodation Case

After change in administration guidance, several drop legal challenges.


Gavin Grimm
Oliver Contreras / ZUMA Press / Splash News/Newscom

The legal battle over which public school bathrooms and facilities transgender students should be permitted to use is getting just a little less complicated.

Eleven states this week are dropping their legal challenges over the rules. Originally they objected to the Department of Justice and Department of Education under President Barack Obama essentially ordering them to accommodate transgender students in public schools by allowing the students to use the facilities of their chosen sex. They filed a legal challenge against the Obama administration, and a federal judge in Texas granted a nationwide injunction, saying the administration had attempted to establish new rules without going through the proper procedures.

In February Attorney General Jeff Sessions and Education Secretary Betsy DeVos revoked this federal guidance (though allegedly DeVos lobbied to keep it in place). President Donald Trump administration's kicking it back to the states, as much as it can. So now that the federal government isn't trying to force this guidance onto the states, those who object to the guidance are free to drop the case.

But to be clear, while that's one less legal case to pay attention to, there's still plenty going on and obviously this controversy is not abating. As things stand right now, the Supreme Court is still scheduled to hear Gloucester County School Board v. G.G. (Gavin Grimm) at the end of March. Grimm, a high school student, is suing his school board in Virginia, demanding the right to use the male facilities rather than either the female facilities or unisex options the district has pushed upon him.

The Supreme Court case is tackling two questions: One, should the courts defer to executive branch's guidance in this situation (as it often does in matters where federal agencies are determining how to implement statutes and regulations); and two, should Title IX be specifically interpreted as to requiring transgender accommodation?

The decision by the Trump administration to rescind the previous administration's guidance complicates the first question and whether the Supreme Court would even consider it, but the second question is still relevant. So the clerk of the Supreme Court sent both sides of the case letters to see how they wanted to proceed and gave them a deadline of this Wednesday to respond.

Both sides still want the Supreme Court to hear the case and rule on the merits, though the school district wants to push the case to April. They would like the United States solicitor general's office to weigh in with a brief expressing the current views of the U.S. government, given the new administration and the change in guidance. Amy Howe of SCOTUSBlog notes this would also potentially give time for Neil Gorsuch to possibly be confirmed to the court and hear the case.

Grimm's lawyers don't want a delay. Originally Grimm's side didn't want the Supreme Court to take the case at all and asked last fall for the court to deny certification. They didn't need to get the Supreme Court involved because at the time the federal rulings and the Obama administration were all leaning their way (the case had been found in Grimm's favor). The ruling in Texas and the new administration rescinding the guidance that schools must cooperate changes the situation significantly. That the Supreme Court may consider whether Title IX requires transgender accommodation might settle the matter once in for all. Alternatively, they could, like the Trump administration, leave it up to the states. Heck, even if they decide that Title IX does require transgender accommodation they probably wouldn't want to get terribly involved in what the solutions should look like.

There could be some news soon of whether the Supreme Court is going to change its plans. In the meantime, briefs of support for either side have started rolling in. The attorneys general of 18 states and Washington, D.C., sent in a brief encouraging the Supreme Court to find in Grimm's favor and require public schools accommodate transgender students' choices. Another 23 states sent in a brief calling for the Supreme Court to find for the school board and leave it to them to decide what policies to put in place. So 41 out of 50 states (and D.C.) have weighed in on what they think the court should do.

For self-described libertarians who for some reason find switching sexes unseemly or unnatural, check out Jason Kuznicki's piece from 2015 over at about how transgender transformations fit just fine within the heavily libertarian transhumanist movement. The idea that we should be able to improve everything about our bodies except for realigning our genders doesn't make a whole lot of logical sense. And transgender economist Deirdre Nansen McCloskey has a piece in the April issue of Reason magazine, hitting the stands right now, about government's involvement in policing gender expression.