The Rostow Report by Ann Rostow

Keep On Fighting

The Supreme Court refuses to hear the case for transgender student Gavin Grimm, whose fight to use the boy’s school bathroom has been sidelined by the Trump administration.


Last March, the U.S. Court of Appeals for the Fourth Circuit handed our community a major victory, ruling that transgender student Gavin Grimm should be free to use the boy’s facilities at his Virginia high school. After the full court declined to review that decision, the school district appealed the ruling to the U.S. Supreme Court, which agreed to hear the case this session. Oral arguments had been scheduled for March 28.

On Monday March 6, the High Court vacated the ruling and sent the case back to the Fourth Circuit for reevaluation. The Fourth Circuit opinion that briefly made transgender rights binding law through the region, is now gone.

Well, some of you may be thinking, why would the Fourth Circuit change their minds when they revisit this case? Won’t they again rule in favor of Gavin? Won’t the case then travel back to the justices? Maybe yes, maybe no.

This case turns on the interpretation of Title IX of the Education Amendments of 1972, the law that bans sex discrimination in public schools and colleges. Beyond that, it turns on the more fundamental definition of “sex discrimination” throughout federal law. If you fire a transgender man for transitioning, is that sex discrimination? If you force transgender kids to use a special bathroom, is that sex discrimination? If you won’t promote masculine women or feminine men to high positions in your company, is that sex discrimination?

The debate is buttressed by competing court precedents, including a major 1989 ruling from the Supreme Court that says sexual stereotyping, like the promotion example in the last paragraph, is indeed an example of illegal bias in the workplace.

In Grimm’s case, the Fourth Circuit basically said that federal law is ambiguous. But instead of producing a new analysis in an effort to sort it out, the three-judge panel relied on the trans-friendly interpretation of Title IX from the Obama Department of Education. In fact, the panel said it was legally bound to follow administration guidance when a law or policy is unclear. And long before the Supreme Court’s decision to dump the case, the justices announced that they were interested in addressing whether or not that kind of deference was justified.

Now, the Trump administration has installed a new Secretary of Education and a new Attorney General, who, to no one’s surprise, disagree with Obama’s transgender policies. The new administration has revoked Obama’s guidelines and announced that the laws on sex discrimination will be subjected to further consideration. The reversal pulls the legs out from under the Fourth Circuit’s original reasoning, and sets the stage for a complete do-over of the Grimm case.

Trump officials have not exactly reversed Obama’s policies. They have put a pin in them pending additional review. So assuming this non-policy persists, how will the Fourth Circuit evaluate  Grimm’s claim? Perhaps the Fourth Circuit will again decide that Title IX covers transgender bias. If so, they must come to that conclusion on their own, without passing the buck to bureaucrats in the executive branch. And if that happens, the High Court would have to decide whether or not to tackle the core issue of sex discrimination rather than the side issue of who gets to decide the meaning of an ambiguous regulation.

Most significantly, the Court’s move means that if the case returns to the docket, it will come before a nine-member bench. Previously, some of us hoped that the case might result in a four-four tie, which would not create a precedent, but which would at least preserve Grimm’s victory. Optimists had hoped (and still do) that Justice Kennedy might provide a fifth vote in favor of transgender rights.

The Trump administration has also backed away from defending trans rights in two lawsuits filed by conservative states in opposition to Obama’s policy. Obviously, the states effectively won those suits once Trump’s appointees pulled down the pro-transgender legal views of the Justice and Education Departments. (Note that Education Secretary Betsy DeVos protested that decision but meekly gave way to Trump’s alpha dogs.)

Finally, remember when the Obama Justice Department filed suit against North Carolina’s anti-trans bathroom law, HB2? Where do you think that one’s going?