March 6, 2017 at 9:42 am EST | by Chris Johnson
Supreme Court scraps consideration of Gavin Grimm case
Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The monumental ruling expected this year from the U.S. Supreme Court on transgender rights will have to wait for another time.

The U.S. Supreme Court on Monday scrapped consideration of the case filed by the American Civil Liberties Union on behalf of transgender student Gavin Grimm, who’s seeking to use the boys’ room in Virginia schoool consistent with his gender identity.

In a notice of the court, justices grant summary disposition in the case, remanding it to the U.S. Fourth Circuit Court of Appeals for reconsideration in the aftermath of the Trump administration revocation of Obama-era guidance assuring transgender students can use the restroom consistent with their gender identity.

Supreme Court scraps Gavin Grimm case

The issue of whether courts should defer to the guidance under precedent of the 1997 U.S. Supreme Court decision in Auer v. Robbins formed the basis of the first question before the court in the case. The Fourth Circuit had relied on the guidance in its decision last year in favor of allowing Gavin Grimm to use the restroom at his Gloucester County high school.

But the Supreme Court was also set to consider a second question on whether Title IX of the Education Amendments of 1972 also bars schools from discriminating against transgender kids or denying them access to the restroom consistent with their gender identity. With the Supreme Court punting the case to the Fourth Circuit, an ultimate determination on whether the prohibition on sex discrimination under Title IX protects transgender kids will have to wait for another time.

Joshua Block, a senior staff attorney with the ACLU who’s representing Gavin, said in a statement the Supreme Court’s decision to scrap the case isn’t “the end of the road.”

“Nothing about today’s action changes the meaning of the law,” Block said. “Title IX and the Constitution protect Gavin and other transgender students from discrimination. While we’re disappointed that the Supreme Court will not be hearing Gavin’s case this term, the overwhelming level of support shown for Gavin and trans students by people across the country throughout this process shows that the American people have already moved in the right direction and that the rights of trans people cannot be ignored. 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.”

The decision by the Supreme Court to punt the case back to the Fourth Circuit wasn’t entirely unexpected after the Trump administration rescinded the guidance, although some legal observers thought the Supreme Court would at least hear oral arguments as scheduled on March 28 before making a decision. The decision by the Trump administration to rescind the guidance on the basis the states, not the federal government, should determine whether transgender kids can use the restroom in accordance with their gender identity shook up the pending case before the Supreme Court.

Eliza Byard, executive director of the LGBT student group GLSEN, said in a statement the Supreme Court “missed an opportunity to end the painful discrimination” across the nation by remanding the case to the Fourth Circuit.

“We remain confident the courts will ultimately stand with Gavin and other transgender students in seeking access to school facilities that correspond with their gender identity and determining their gender-affirming name and pronouns, but in the meantime trans students are left without clear protections from our Federal government while the case is reheard,” Byard said.

Sarah Warbelow, legal director for the Human Rights Campaign, placed the blame squarely on the Trump administration for extended litigation before a final resolution on the issue of whether Title IX protects transgender students.

“The Supreme Court of the United States sent this case back to the Fourth Circuit as a direct result of the Trump Administration rescinding school guidance protecting transgender students,” Warbelow said. Now, thousands of transgender students across the country will have to wait even longer for a final decision from our nation’s highest court affirming their basic rights.”

Tony Perkins, president of the anti-LGBT Family Research Council, said in a statement the Supreme Court “provided good news to parents and students concerned about privacy and safety” in school facilities.

“We are encouraged that policymakers and the Supreme Court are increasingly skeptical of the federal government forcing boys and girls to shower together, room together on school trips, and use the same locker rooms and bathrooms,” Perkins said. “The American people have shown at the ballot box that they want to get away from Washington bureaucrats imposing a one-size fits all policy. State and local officials working together with parents are best equipped to design policies that respect the dignity, privacy, and safety concerns of all students.”

The Supreme Court scraps the case one week after a bevy of friend-of-the-court briefs were filed in favor of Gavin, such as filings from more than 50 businesses, nearly 200 members of Congress and 80 school administrators and school districts.

House Minority Leader Nancy Pelosi (D-Calif.) said in a statement the Supreme Court decision is a disappointing detour, but it does not change the reality of the law,” citing the brief filed by lawmakers.

“Nearly 200 Members of Congress filed an amicus brief in this case because we know that transgender students have the same right to a safe environment at school and in their community as everyone else,” Pelosi said. “LGBT students are owed the same protections as every other student – and transgender children are some of the most at-risk in our schools. No child should suffer discrimination because of who they are. We are confident the court will ultimately rule in support of LGBT children’s right to live and learn free from discrimination.”

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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