SCOTUS boots the transgender bathroom case back to the Fourth Circuit
This news may be disappointing but it’s certainly not unexpected. In a single sentence notification which was issued this morning, the Supreme Court has rejected the case of “transgender teen” Gavin Grimm and sent it back to a lower court for a preliminary decision. (Associated Press)
The Supreme Court is returning a transgender teen’s case to a lower court without reaching a decision, leaving in limbo the issue of transgender rights in school settings.
Monday’s action comes after the Trump administration pulled back federal guidance advising schools to let students use the bathroom of their chosen gender, not biological birth.
The justices said in a brief order that they have opted not to decide whether federal anti-discrimination law gives high school senior Gavin Grimm the right to use the boys’ bathroom in his Virginia school.
When the court initially agreed to hear this case in January I wrote at length about my low expectations in terms of a possible result. It seemed to me at the time that the justices would likely be reluctant to issue any sort of sweeping ruling on the fundamental issues at the heart of the challenge. Given that the school policy in question was based on an objection to an Obama era Department of Education letter dealing with title IX, the possibility existed that they might rule very narrowly on that interpretation. The more difficult path would have been to answer the overarching questions of whether or not both government policy and medical practices should be structured around a belief in “gender identity” as something separate from basic biology and common sense.
The situation obviously became more complicated when the Trump administration promptly rescinded the letter, effectively removing the original barrier from the equation. This handed a convenient parachute to the Supremes which would allow them to bail out on making such a ruling. In one regard, this really isn’t out of keeping with their normal practices. The court generally likes to have some lower court decisions to evaluate before tackling something this complicated and thus far there haven’t actually been any.
But what is the lower court to make of this now? The school board was objecting to an interpretation of federal policy which is no longer in effect. With that in mind it would seem that their policy is being challenged by the student’s family but there is no set of federal guidelines to back them up. If the lower court is going to make this decision they will now be essentially setting sail on completely uncharted waters.
It looks like this one is just going to go back on the drawing board. The way these things typically play out we could be looking at one to two years before the case makes it back in front of the Supreme Court, assuming it does it all. In the meantime, other, more important issues may be left unchallenged. One of the key examples comes in the form of the recent case we talked about here involving the “transgender boy” who was competing against other girls ina high school wrestling tournament. Less important to me is the question of who that teenager should be competing against when compared to the fact that a family has convinced a doctor to begin injecting hormones into their daughter’s body which are completely unnatural to her.
Sadly, we probably won’t find anyone with standing to challenge that situation. And so, yet again, we wait.