August 10, 2016 at 2:36 pm EDT | by Chris Johnson
Trans bathroom use next frontier for courts on LGBT rights
transgender, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

In the aftermath of the historic decision in favor of marriage equality, the next LGBT rights issue the courts will likely settle is the right for transgender people to use the restroom consistent with their gender identity, although legal experts have different predictions on whether the endgame is the Supreme Court or lower courts.

Last week, the U.S. Supreme Court weighed in on the case of a transgender Virginia student whose school is barring him from using the boy’s restroom by issuing a stay blocking a ruling in his favor from the U.S. Fourth Circuit Court of Appeals from taking effect.

The law supporting the case for Gavin Grimm, a student at Gloucester High School, is Title IX of the Education Amendments of 1972. The Fourth Circuit determined the prohibition on gender discrimination in schools requires the school to allow Grimm to use the restroom consistent with his gender identity.

Observers have predicted the 5-3 stay in the case indicates the Supreme Court will grant review in the case as part of its upcoming term. After all, issuing a stay requires a vote of five justices on the Supreme Court, but granting a writ of certiorari (or agreeing to take up a case) takes a vote of four.

But legal experts denied that scenario will necessarily unfold of the Supreme Court accepting the Grimm case and settling the transgender restroom issue with that case.

Jon Davidson, legal director for Lambda Legal, said although the Supreme Court may decide to take up the Grimm case, the granting of a stay “doesn’t indicate for sure that they will grant cert.”

“There have been multiple cases where the Supreme Court has granted a stay of a lower court and then denied cert after it’s granted stay pending consideration of a cert petition,” Davidson said.

Ilona Turner, legal director of the San Francisco-based Transgender Law Center, said agreement from the Supreme Court to hear the case is “pretty unlikely” because the Fourth Circuit decision “is so legally sound” and the issue is new in federal courts.

“Usually the Supreme Court will only take up review if the lower courts and specifically the federal courts of appeal are in disagreement with one another, if there’s a real deadlock among the federal courts of appeal, and we are very far from anything like that in terms of Title IX’s protection for transgender students,” Turner said.

The Supreme Court initially granted stays pending review of federal appeals court decisions in favor of marriage equality in the Tenth, Fourth and Seventh Circuits, then ultimately declined to hear the cases. Only after the Sixth Circuit upheld bans on same-sex marriage, creating a split among the circuits, did the Supreme Court decide to adjudicate the marriage issue.

Moreover, U.S. Associate Justice Stephen Breyer, considered one of the four liberal justices on the bench, voted with the conservative justices to grant a stay “as a courtesy.”

Breyer, who has called the death penalty cruel, has been thwarted from considering a case that could potentially ban the punishment, Medellin v. Texas, because justices wouldn’t grant a stay on the execution of a death row inmate before the Supreme Court could consider the issue. Breyer cited the case in his explanation for why he was granting a “courtesy” vote for conservative justices on the bench.

Davidson said the Supreme Court may well decline to hear the Grimm case given Breyer’s apparent disagreement in principle with the stay — as well as the current eight-justice makeup of the bench — because they know the ultimate result would be affirmation of the Fourth Circuit decision.

“Any four justices who may want to hear the case because they disagreed would understand that a 4-4 split by the Supreme Court would summarily confirm the 4th Circuit decision, just as happened recently in the U.S. v. Texas case involving immigration enforcement, and would keep the injunction in place,” Davidson said. “And so, they would need to think about whether they would really want to grant cert under those circumstances.”

The Gloucester School Board has yet to even file a petition of certiorari before the Supreme Court even though the request for a stay was based on Supreme Court consideration of the lawsuit. The deadline for the school board to make the filing is Aug. 29, which is 90 days after the Fourth Circuit’s final decision denying the school board’s motion for en banc review before the full court on May 31.

The Supreme Court would likely docket the petition for consideration during conference after the new term begins in October, although there’s no deadline for the court to consider the request or take action.

Davidson said even if the Supreme Court declines to take up the Grimm case, justices will likely accept review for a lawsuit on whether transgender people can use the restroom consistent with their gender identity at some point in time — perhaps in three to four years.

“I think there’s a good chance that the Supreme Court would grant cert at some point,” Davidson said. “I think there is sort of an issue where I think there’s a good chance there would be a split in the circuits at some point, but one of the issues with respect to the G.G. case is that it is kind of early in the development of the case law here for the Supreme Court to weigh in on this issue.”

If the November election is favorable to transgender advocates, Davidson said the issue could also be resolved through passage of comprehensive LGBT non-discrimination legislation known as the Equality Act, which he said would be a “definitive statement” that gender identity is protected under the law.

Turner, on the other hand, predicted every circuit adjudicating the issue would follow precedent and rule in favor of transgender people using the restroom consistent with their gender identity, eliminating the need for the Supreme Court to take action.

“I’m confident that we won’t see other circuit courts going the other way because the reasoning of the Fourth Circuit is so sound and they were simply applying well-established rules of interpretation to Title IX to conclude that transgender students are entitled to the same protections as everyone else, and it’s pretty hard to disagree with that conclusion legally,” she said.

The Grimm case is but one of multiple cases on the right of transgender people to use the restroom consistent with their gender identity, although his case is the furthest along procedurally.

Five lawsuits are challenging North Carolina’s House Bill 2, which prohibits transgender people from using the restroom in schools and government buildings consistent with their gender identity. Those lawsuits include one filed against the law by U.S. Attorney General Loretta Lynch and another by Lambda, the American Civil Liberties Union and the ACLU of North Carolina as well as countersuits filed by the North Carolina Legislature, the anti-LGBT Alliance Defending Freedom and Gov. Pat McCrory. A trial over HB 2 is set to begin in federal court on Nov. 14.

In response to the Obama administration’s guidance instructing schools to allow transgender students to use the public restroom in accordance with their gender identity, Texas Attorney General Ken Paxton filed a lawsuit representing 12 states and two school districts against the Obama administration. Nebraska Attorney General Doug Peterson is representing 10 states in a separate lawsuit against the guidance. An initial hearing in the Paxton lawsuit is set for Friday.

In Wisconsin, a transgender student has filed a lawsuit against Kenosha Unified School District for barring him from the boys’ restroom and not respecting his gender identity in other ways. A similar lawsuit was filed in federal court by a transgender boy in Talbot County, Md.

In Illinois, the Alliance Defending Freedom has filed a lawsuit representing Palatine School District against the Department of Education after a transgender student was granted access to the girl’s locker room. In Ohio, the Alliance Defending Freedom is representing Highland School District in a similar lawsuit over the federal government’s requirement for accommodation of transgender students.

Also pending is the lawsuit against Mississippi’s recently enacted “religious freedom” law House Bill 1523, which allows businesses to prohibit restroom usage in accordance with gender identity. A federal court has placed an injunction on enforcement of the law, but the litigation isn’t yet resolved.

Joshua Block, a senior staff attorney for the ACLU’s LGBT Project, said the stay in the Grimm case may impact proceedings in these other cases, but they’re unlikely to reach the Supreme Court in time for joint consideration.

“Some judges might hold off on ruling, some judges may not,” Block said. “I’m sure the different parties in the different cases will be arguing to the judges whether they should … move forward, but obviously I don’t think there’s any case that is in a posture of being decided by a district court and being decided by the court of appeals before mid-October.”

A key decision bolstering the case transgender people must be allowed to use the restroom consistent with their gender identity under current law is the 1989 Supreme Court ruling in Price Waterhouse v. Hopkins, which determined gender stereotyping is actionable as sex discrimination under Title VII of the Civil Rights Act. Courts and the U.S. Equal Employment Opportunity Commission have drawn on this ruling to determine transgender discrimination is barred under current law.

Although Title VII governs employment, not education, courts look to guidance on Title VII for interpretation of Title IX because both laws prohibit gender discrimination.

Based on this precedent and other rulings under Title IX, Block expressed confidence the Supreme Court would rule in favor of transgender rights if justices granted certiorari to review the case.

“I’ve learned many, many times not to predict how the justices would rule, but I can certainly predict on what the answer should be based on existing precedent on everything the court has said before, which is that the Fourth Circuit’s decision was correct, and under any standard of review or any standard of deference, excluding transgender students from being able to use the same restrooms as their peers violates Title IX,” Block said. “And I think certainly if the court does grant cert now, I am certainly hopeful they will be consistent with what they’ve said before and affirm the Fourth Circuit decision.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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