The U.S. Supreme Court announced it would no longer hear a case involving the question of whether a transgender teen has the right to use the school’s restrooms and sex-segregated facilities according to gender identity rather than biological sex.
The high court was scheduled to hear the case involving Gavin Grimm from Virginia on March 28, but instead has sent the case back to the lower courts.
Up until this point, the highest court which has ruled on this case is the 4th U.S. Circuit Court of Appeals, which ruled in favor of Grimm in April of last year. The Supreme Court’s action will vacate that ruling, and the appeals court will have to reconsider the case.
The Circuit Court had relied heavily on a guidance issued by the Obama administration in 2016, which directed public schools across the nation to allow transgender students to use restrooms and other sex-segregated facilities according to their gender identity. The administration referred to Title IX of the Education Amendments of 1972, a non-discrimination clause, and interpreted discrimination on the basis of sex to also include gender identity. The administration also said states which do not follow the guidance could risk losing federal funding for education.
However, the Trump administration issued another guidance in February reversing that of the Obama administration, saying that the latter’s guidance does not “contain extensive legal analysis” and that it does not “explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
The 4th U.S. Circuit Court of Appeals will now have to consider whether or not the definition of “sex” in the Title IX clause does include gender identity.
Until the issue is brought again to the Supreme Court, which is unlikely to happen this term, the issue of the use of restrooms, locker rooms, and other facilities will be determined by lower courts across the nation.
Grimm, a 17-year-old who was born as a female but identifies as male, expressed determination for the long run.
“I’m in it for the long haul,” TIME quoted Grimm as saying in a press call. “If it took 10 years, I’d stick with it.”
“The Supreme Court has missed an opportunity to end the painful discrimination currently faced by tens of thousands of transgender students nationwide,” said Eliza Byard, executive director of the LGBTQ youth advocacy group GLSEN.
Kerri Kupec, a legal counsel from Alliance Defending Freedom, said that the Supreme Court’s decision “only makes sense.”
“It only makes sense for the Supreme Court to vacate the 4th Circuit’s earlier decision and to instruct it to reconsider this case,” Kupec said. “The 4th Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers, and restrooms.”
Meanwhile, the lack of decision on a federal level may leave schools at risk of more lawsuits, according to Francisco Negrón Jr., the chief counsel for the National School Boards Association.
“The ultimate constitutional issues remain unresolved for the school districts,” Negrón Jr. told The Washington Post. “Regardless of what action they take, they are liable to be sued by persons on both sides of this issue.”