February 24, 2017 at 6:55 pm EDT | by Chris Johnson
Trump’s transgender roll back shakes up Supreme Court case
Kenda Kirby, transgender, Supreme Court, gay news, Washington Blade

Revocation of the trans student guidance shakes up the Supreme Court case. (Washington Blade file photo by Michael Key)

The Trump administration’s revocation of guidance protecting transgender students has not only stirred up the LGBT community, but also shaken up the case pending before the U.S. Supreme Court that could determine whether Gavin Grimm — and trans students like him nationwide — will be able to use the restroom consistent with his gender identity.

Without guidance in place asserting transgender kids can use the school restroom consistent with their gender identity, the U.S. Supreme Court has no need to address one of two questions before the court and has an “off-ramp” to remand the case to a lower federal appeals for reconsideration.

The Supreme Court was set to consider two questions: 1) Whether under precedent of the 1997 Auer v. Robbins decision courts should defer to the Obama administration’s guidance allowing transgender kids to use the restroom in accordance with their gender identity; and 2) Whether Title IX regardless of the guidance prohibits schools from blocking transgender students from using the restroom of the gender with which they identify.

But the first question now seems moot because the Trump administration has rescinded the guidance — claiming the Obama administration’s legal reasoning Title IX protects transgender kids is faulty, despite massive case law supporting that view — so the Supreme Court no longer has a reason to consider whether courts should defer to it.

Joshua Block, who represents Grimm as a senior staff attorney at the ACLU LGBT project, said during a conference call this week he doesn’t expect the Supreme Court to evaluate the case on the basis of the guidance any longer.

“That question falls out and so the court probably won’t be deciding whether or not it was correct to defer to the agency’s views,” Block said.

Jay Holland, a civil rights attorney with the D.C.-based firm Joseph Greenwald & Laake, also predicted the court would ignore the question because considering it at this point would be “essentially an academic exercise.”

“I think it is probably likely that question is mooted out, but the rest of the case isn’t necessarily mooted out,” Holland said. “Ultimately the guidance is based upon statute and case law and statute and constitutional law. The guidance is based upon an interpretation of Title IX and what it means to not discriminate on the basis of sex. That’s an interpretation that the court could certainly decide.”

As a result of the changed situation, the U.S. Supreme Court could decide to send the case back for reconsideration to the U.S. Fourth Circuit Court of Appeals, which ruled in favor of Grimm on the basis of the guidance.

James Esseks, director of the American Civil Liberties Union’s LGBT project, said during a conference call the Supreme Court could remand the case, but the ACLU will still urge for a ruling from the Supreme Court.

“It is possible that the court will decide to send it back, but it is not guaranteed at all,” Esseks said. “And I think both parties are going to be telling the court, for what it’s worth, that we think it’s important for the courts to decide the question.”

Although arguments in the case are set for March 28, Esseks said it’s “not super likely, but it’s possible” the Supreme Court could remand the case back to the Fourth Circuit before that time now that the guidance is rescinded.

Holland said the current makeup of the court — eight justices with a seat that remains unfilled after the death of the late U.S. Associate Justice Antonin Scalia — makes it more likely a non-precedential tie ruling, which the high court could seek to avoid by remanding the case for renewed consideration.

“Given that the grounds on which the Fourth Circuit relied no longer apply, it would not be unheard of or unprecedented in any way for the court to remand it to the Fourth Circuit,” Holland said.

If the Supreme Court were to keep considering the case on its merits, the remaining issue would be whether Title IX on its own requires schools to allow transgender kids to use the restroom consistent with their gender identity.

The ACLU filed a brief before the Supreme Court urging justices to leave it alone and let the issue percolate more through circuit courts, but that’s no longer the view of the organization.

Block said the ACLU now believes the issue is ripe for a nationwide answer because of additional rulings from lower courts — including trial courts in Texas, Ohio and Wisconsin — as well as actions from the Trump administration.

“I think that a lot more percolating has been done, and despite withdrawing this guidance, the new administration has only made more litigation even more likely,” Block said.

One question that remains is whether the Trump administration will seek to weigh in on the case after having informally stated a position by withdrawing the guidance. In addition to the letter informing the court the guidance is now junked, the administration informed the court it no longer holds the view on Title IX as determined by the Obama administration.

Block, however, said the letter to the Supreme Court demonstrates the Justice Department has “just taken more of neutral view” from a legal standpoint and its points “are pretty self-contradictory.”

“They seem to say Title IX does protect trans kids from bullying and there are plenty of other guidance documents out there saying the exact the same thing that have not been withdrawn,” Block said.

White House Press Secretary Sean Spicer told the Washington Blade Thursday the revocation of the guidance itself “clearly does” represent the Trump administration’s view in the Gavin Grimm case, but he wasn’t clear on what that position is other than to suggest Title IX doesn’t cover transgender students.

“The guidance that was put forward by the Obama administration, which clearly hadn’t been done in a proper way in terms of how they solicited, or, rather, didn’t solicit comments — the guidance it puts forward obviously sends a signal to the Court on where the administration stands on this issue,” Spicer said.

The deadline was Jan. 10 to a file a friend-of-the-court brief in favor of Gloucester County Schools, which is seeking to bar Grimm from the boys’ room.

Holland said the court could make arrangements for Trump’s Justice Department to file a friend-of-the-court brief. Such a move, he said, would be “extraordinary” and unlikely to happen, but not impossible given the change in administrations.

“It’s not unprecedented that a change of administration in court proceedings — be they Supreme Court or lower court proceedings — that the Department of Justice asks that the court either delay oral arguments or a ruling, so that the Department of Justice can assess what position to take or ask for leave of the court to supply its opinion and supply briefing on the issue on behalf of the administration,” Holland said. “I doubt that will happen here.”

If the ultimate action from the Supreme Court is a ruling determining that Title IX forbids blocking transgender kids from the restroom consistent with their gender identity, it would fly in the face of the argument expressed by the Trump administration the legal reasoning for those protections is unsound. The Department of Education could face renewed pressure to guarantee it would accept claims of anti-trans discrimination in schools.

Holland, however, said there’s no telling whether the Department of Education would change its position and transgender students facing discrimination may have to file their own Title IX cases in the court system.

“Individuals will still have the right to bring discrimination claims, whether the administration intervenes in those claims will be up to the administration, but that will be the law of the land at that injunction,” Holland said.

Holland acknowledged a ruling in favor of Grimm at the Supreme Court would make it more difficult for the administration to ignore claims of anti-trans discrimination, but expressed doubt that would be the case, pointing to recent comments from White House chief strategist Steve Bannon at CPAC on seeking the “deconstruction of the administrative state.”

“Frankly, we’re in a brave new world, and it’s very difficult to predict what this administration would do and whether if they indeed care, whether they comply with the law or would bow to any public pressure to do so,” Holland said.

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

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