Trans

Supreme Court Punts Transgender Bathroom Case Back Down

Removal of Obama Administration's orders erases question about whether the courts should defer.

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Gavin Grimm
Oliver Contreras/Sipa USA/Newscom

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 In February, Attorney General Jeff Sessions rescinded a guidance letter from President Barack Obama's administration ordering public schools to accommodate transgender students in the bathrooms and facilities of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and bounced it back down to the 4th Circuit to be reconsidered in the wake of the Obama administration's guidance being rescinded.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.

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  1. Isn’t Gavin Grimm like 30 by now?

    1. The point is to address this issue, nationwide, once and for all while not losing our national identity as the land of freedom or something.

      1. Wouldn’t the citizens of an actually-free country be able to pee just anywhere? And if so, doesn’t that make Crusty the only truly free man?

        1. What about those who can’t pee? Why do you hate the bagged ones?

          1. Unrestrained micturition for some, dialysis machines for others!

        2. Wouldn’t the citizens of an actually-free country be able to pee just anywhere?

          I just presumed this to be the origin of the word Fremen.

          1. I read Dune in high school, and all i could think when the Fremen were introduced was, “Man, i bet those stillsuits smell nasty.”

            1. Remember, they drank their own runoff, too.

              1. So does everyone else. Or do you believe the water you consume is 100% newly made?

                1. In the next ten or twenty years you’ll probably see that.

                  “Who wants to drink icky recycled pee-water? Try our Hydro-fresh water today! It’s manufactured in our factories from pure oxygen and hydrogen! Your water has never been in someone’s body before!”

      2. like freedom to use a single sex bathroom without some lunatic of the opposite sex who believes he or she is your sex invading your privacy?

  2. “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.”

    Leviathan will not rest until he can dictate to us where we can take a shit.

    1. And that seems to be where about 47% [yeah, Romney] want just that; to have a overreaching federal government in loco parentis for every thing we do, eat, shit, and breathe.

      And, by the by, you have to do it that way too.

      “A government has no business micromanaging the lives of a free people.” Is it just me, or is that sentiment becoming more radical by the day?

    2. Leviathan will not rest until he can dictate to us where we can take a shit.

      Huh, the way I read it you’ll still be able to take a shit wherever you want.

      1. I am pretty sure you cannot take a shit exactly whereever you want (if where you want is not a toilet or outhouse).

  3. Oh boy, I can’t wait for John to opine.

    1. Something something mental illness something freedom of religion – I think that covers it.

  4. “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.”

    But what dignity and respect do they deserve? And why do the courts need to be involved in that? Aren’t courts supposed to settle rights disputes and not desert disputes?

    1. I suppose that last part should be ‘disputes over deserving’.

      1. No, not dessert. There are no just desserts.

      2. Can Gavin Grimm have his cannoli and eat it too?

        1. Looking at the picture, no way he’s that flexible.

    2. I vote for creme brulee

    3. desert disputes

      We should probably leave the Middle East out of this.

      1. Well done, you’re the only person who didn’t misread an extra s into that word.

        1. I DIDN’T MISREAD, JERK.

    4. It all deends on who can court the Fremen to their side, as they represent desert power.

  5. “A previous Supreme Court precedent determined that discrimination on the basis of whether somebody exhibited “stereotypical” gender traits counted as sex-based discrimination.”

    What about my claimed Stereotypical” racial traits ?
    As an identified black, I want the the state to enforce my special protections in the civil rights law

    1. Yeah, that sentence gave me pause too. Can’t wait to see where else opening up that can of worms leads.

    2. As an identified black, I want the the state to enforce my special protections in the civil rights law

      Ok, but then you have to accept the police beatings, the fewer rental housing options, and lousy service because servers think you don’t tip.

      1. But the abilities to jump higher and to dance in a non-embarrassing manner make up for it.

        1. Pretty sure most black people would disagree.

          1. (apologies if I fell for Poe’s law)

          2. Sorry I wasn’t woke enough to take your answer seriously.

    3. I am not sure what a precedent having to do with “stereotypical gender traits” applies to whether certain types of facilities can be segregated by sex. In practice, Grimm is asking for restrooms and such to be segregated on “stereotypical gender traits” rather than physical sex. Essentially, Griimm wsnts to be discriminated against on the basis of gender expression.

  6. I wonder where all this is going? In the future, will each of us be required to wear symbols indicating whether we are male, female, gender fluid, caucasian, negro, asian, mongrel, libertarian, socialist, citizen, non-citizen, etc?
    How are observers supposed to know what our “rights” are unless we display our certified selves?

    1. We’ll all be shut-ins. It’s the only way to be sure.

    2. And in yet another evil white patriarchal racist Nazi move, the white, straight, and male buttons will be 10x the size of the others.

      1. And in yet another evil white patriarchal racist Nazi move, the white, straight, and male buttons will be 10x the size of the others.

        Wrong, they’ll all be coded into binary with cis, white, straight, male, etc. “buttons” being coded by null bits. This will effectively leave room for more variations on not-straight, not-white, not-male, not-etc. while simultaneously rendering each snowflake variant an effective minority.

    3. “I wonder where all this is going?”
      You don’t hav eto wonder. In plenty of places trans folk can use their preferred restroom.

      It looks like pretty much everywhere else. The only difference is that in some edge cases, you don’t have busy-body teachers saying “Go use the girl’s restroom, Joe.”

      1. It looks like pretty much everywhere else. The only difference is that in some edge cases, you don’t have busy-body teachers saying “Go use the girl’s restroom, Joe.”

        This is a confirmation bias. Just because Grimm asserts rights were violated doesn’t mean rights were. The main reason this isn’t Grimm vs. Busybody Teacher is because busybody teacher has all manner of free speech and public accommodation rights him/herself to defend him/herself with while the schoolboard as an organization doesn’t.

        Your assertion is that transgender people used to switch genders in HS and/or switch genders without friends, coworkers, and/or casual acquaintances knowing and (dis)approving is absurd.

    4. This is exactly the problem. While at a high school everyone may (or may not) know the trans person and be able to adapt to their behavior (like sharing the girl’s shower), in any other setting we are surrounded by strangers.

      Just for yuks (and I mean that in both senses) do a search for “chicks with dicks” and let me know if it is ok with you for one of those to share the showers with your daughters.

  7. C’mon, no one is going to give Scott a +1 for the alt-text?

    1. Scott is so awesome at alt-text that at this point it’s more notable if he flubs it.

  8. More drama queenery. Just what this country needs.

    Can somebody just bitch slap Grimm with a non-existent dick?

  9. well I for one don’t have a pot to piss in…

  10. in all the hullabaloo, I forgot, what kind of plumbing does this thing have? I mean is h/she/it a stander or a sitter? cause that’s the only real difference, and oh yeah whether you use the publically mandated peephole to check on your neighbors plumbing

    1. He is biologically female and will probably always be a sitter, or at least use some apparatus if they wish to stand as the FtM reassignment surgery is, apparently, no where near as good as the MtF surgery. Turns out building a functional penis is much more difficult than lopping one off and creating a cavity where it once resided.

      Yet another form of male-privilege.

      1. I can glue a horn to my forehead, but that doesn’t make me a fucking unicorn…

        1. Of course not! You’ve got to start by intermittently neighing in the middle of conversation for a few months, then progressively start chewing grass openly, regurgitating and rechewing it, and pawing the ground with your foot once for yes and twice for no. Once you’re doing that convincingly, then maybe you can get a doctor to start injecting saline into your forehad. Then after the course of a few years, you’ll rightly be a trans unicorn. At which time, you and all your friends can shame the normies for not inherently knowing that you aren’t ‘head injury centaur guy’ and for not providing you with a stall to piss all over the place in.

  11. And Shackford, Grimm is asking for the Supreme Court to decide on where transgendereds go to the bathroom ( and locker room, and showers) and impose one standard on everyone. If Grimm was ruled against that would not impose the solution the school came up with on any other jurisdiction.

    1. Sort of?

      If the SCOTUS reversed the precedent on using Title IX sex-discrimination logic on transgender issues, that would be a pretty big precedent for all cases involving trans* rights. Which includes pretty much every federal trans* case ever.

      It wouldn’t be the instantly wide-sweeping change that a win would be, but it’ll undermine years of case law and almost certainly lead to re-litigation in many areas.

      1. As I wrote above, what Grimm is effectively asking for are facilities segregated on the basis of gender identity in place of sex. I am not sure how that squares with precedents prohibiting discrimination based “on stereotypical gender traits”, but I am not sure what logic there is to “transgender rights” at all (as opposed to mere human rights) except as goals.

        1. Eh, I’d argue that most “sex-segregated facilities” are actually segregated by gender.

          Think about it. You have two men. They’re both bearded, wearing flannel shirts and cowboy hats, have slight beer bellies and hairy knuckles. They head to the restrooms.

          Which situation raises a yellow flag, both men going into the men’s room, or them splitting up, and one taking the men’s room, the other taking the women’s room?

          Similarly, you have two women. Both have their hair long and fancy, done-up in tasteful make-up and jewelry, wearing casual sun-dresses. Which raises a yellow flag, them both heading into the women’s room, or them splitting up and one taking the women’s room, one taking the men’s room?

          Same thing with locker-rooms, actually. You think a big hairy guy going into the women’s locker-room is going to be A-OK when he says “I don’t actually have a penis”?

          And so-on. Heck, when it comes down to it, forcing trans* folk to use the facility based on their “sex” does more to undermine the segregation of those facilities then letting them use the facility they want. ’cause face it, when you’re telling a guy that to compete in wrestling, he must face girls, you’re doing more to undermine the sex-segregation of the sport then if you let him wrestle with other guys.

          1. Maybe, except you are asserting a right to use opposite sex facilities to people who cannot by appearance pass as the opposite sex as well and who are still fully equipped with their original genitalia.

            Keeping a Gavin Grimm out of opposite sex facilities, while providing a reasonable accommodation for thier needs, is not a violation of Grimm’s rights or being disrespectful of those persons.

  12. They’re probably punting until they get a warm body in the ninth seat.

  13. Title IX protects all students, not just trannies. And trannies aren’t being discriminated against because of their non-conforming “traits”. They’re simply being asked to use the proper bathroom/locker room of their sex, not their fairy tale fantasyland, er “identity”. In other words, their nonconforming “traits” are not being considered at all – thus there is NO sex discrimination.

    If anything, the trannies are demanding discrimination. There is no reason to allow a boy who believes (in spite of all the science) that he’s a girl to use the women’s locker room, but not a boy who knows that he is a boy. That would be discrimination.

    Plus, in this case, the school built the tranny her own bathroom and she still sued because she demanded to be treated like a boy – in other words, she sued not for discrimination on the basis of her sex (she was being treated like all of the other members of her sex), but because the school doesn’t deny reality and science, doesn’t go along with her delusions and doesn’t enable her lunatic behavior – even though it tried to accommodate HER crazy beliefs.

    1. ? This. Well said.

    2. a think a proper ass kicking may be in order here…or in this case a proper dope slapping…

  14. RE: Supreme Court Punts Transgender Bathroom Case Back Down

    You would think our court system would have more important legal issue to address than who goes to what bathroom.
    I stand corrected.

  15. “If the SCOTUS reversed the precedent on using Title IX sex-discrimination logic on transgender issues, that would be a pretty big precedent for all cases involving trans* rights. Which includes pretty much every federal trans* case ever.”

    But why would Title IX cover any of this? He simply is not a man. Period. They offered it multiple alternatives and it turned them all down.

    The world isn’t designed to cater to the whims of all snowflakes.

    1. “But why would Title IX cover any of this?”
      Because anti-trans folk can’t come up with anything better then
      “He simply is not a man. Period.”

      Less snarkily, I’m not a lawyer, just an armchair-lawyer, and this topic is one where my basis is weaker. So I encourage you to look to the sources. Try googling “EEOC sex-discrimination” for a good start.

      Away from legal arguments though, a large reason trans folk are winning (culturally, if not always legally) is because trans folk are way more sympathetic then folks obsessed with genitals. Until anti-trans folks find a way to frame their opposition in ways that doesn’t come across as petty, mean and cruel? they will continue to lose the cultural argument. Legal arguments? They’ll probably continue to win those for a while. But the legal argument always falls apart when the culture no longer supports it.
      ________
      ?And yes, calling someone an “it” will always come across as petty, mean and cruel.

      1. I agree derisive language only makes it harder to have a reasonable conversation.
        However, it doesn’t change the fact that dressing and acting like the opposite sex does not, in fact, affect which sex you are.

        So there’s no way around the argument that it is discriminatory to tell a kid who accepts his biological gender that he may not shower with the girls, while telling the boy who wants to live as a girl that he may use the women’s shower.

        And I don’t think culture is as ready for this as you think.

        We are members of the YMCA.
        At the Y, they have separate locker rooms for boys, men, girls, and women (when I was a kid, no one dreamed of such a thing, but that’s for another time…).
        So what do I have to do when I go with my four boys, the oldest of which is 10?
        I have to use the kids’ locker room, because they need supervision and they may not use the men’s locker room.
        And what does my wife do? She has to send boys of ages 6, 8, and 10 into the boys’ locker room by themselves.
        Well guess what? That’s where all the teens are.
        Do you think I trust them? They are mean and immature.

        My point is that protecting kids, even from irrational fears, is taken so seriously in this country that we accept ridiculous and inconvenient solutions.
        In light of that, I think the trans crowd will have a difficult time getting society to allow people to use whichever locker room they want to use.

      2. For years — yes, years — the same people demanding Title IX cover this said, quite explicitly, “sex” and “gender” are not the same thing.

        Now, they are saying they are.

        You can simply deal with the reality that BIOLOGICALLY, they are what they are. Passing legislation for how somebody feels is an utter waste of time. Why not pass laws that deal with what is demonstrably provable and not that what cannot be.

        Dudes who want to pretend to be women aren’t sympathetic. They are insane. No different than anorexics, except we don’t tell anorexics “You know, you’re right. You are a bit of a tub of lard”

  16. These are issues that are best left to the states. Somehow people seem to have forgotten the 10th Amendment.

  17. Gavin Grimm is a female.

    2+2 != 5. I will not believe that 2+2=5 just because Gavin Grimm tells me it is. Well, until I get tortured for 5 minutes…

  18. “While the Obama administration arguably overreached…, they didn’t invent the sex discrimination arguments that have come into play in the case.”

    No, those arguments were invented by others.

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  20. “But clearly the Supreme Court was not ready to establish what might have been a far-reaching precedent.”

    I’d ask where there concerns were about “far-reaching precedents” with cases like Obergefell. They seemed unconcerned about the ramifications from that decision. Why should this case, which is patently absurd (they offered MULTIPLE alternatives to take care of the precious snowflake’s concerns), be a cause of consternation?

  21. The Supremes missed a real good chance to explain about “reasonable and proper” accommodations.
    If this is the case where a private (single user) facility was suggested, and refused, then it is not about accommodating, the transgender, it is about abusing everyone else.
    “Settled science” is chromosome specific, and binary. All the rest is opinion, and not appropriate for legal precedence.

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