A Trump-appointed Supreme Court justice could become a factor in transgender case

Contact Reporterfhubbard@dailypress.com
How will a Trump presidency affect Gloucester transgender case?

It may be too early to tell how the election of Donald Trump will affect cases before the U.S. Supreme Court – like the lawsuit between 17-year-old transgender student Gavin Grimm and the Gloucester County School Board – but discussions about the possible implications continue.

According to Carl Tobias, with the school of law at the University of Richmond, Trump will likely make filling the vacancy on the Supreme Court left after the death of Judge Antonin Scalia earlier this year a top priority.

"The problem is whether it would be soon enough for the new justice to participate in the (Grimm) case, especially the oral argument," Tobias wrote in an email. "If not, it is possible that the court could delay the case until all nine justices can hear it. The court also could proceed with eight and see if they deadlock 4-4 and perhaps rehear [it] later when the new justice is seated."

The court agreed in October to hear the lawsuit filed by Grimm, who is represented by the American Civil Liberties Union. Grimm was born a female but identifies as a male and is suing the school division seeking to use the boys' restrooms. This is the first transgender case to be heard by the high court. Oral arguments could be heard in February or March. Trump's inauguration will be in January.

Since the election, Bill Farrar a spokesman with the ACLU of Virginia, said they have received questions about how the Trump election could affect the case, but the group declined to speculate on potential nominees or whether the Trump administration would roll back the Department of Education's guidelines on restroom use.

"We are confident that our interpretation of Title IX is correct and that it will be validated in the court's eventual ruling, regardless of composition," Farrar wrote in an email.

Officials in 13 states sued the U.S. government over a May 16 letter from the Departments of Education and Justice directing schools nationwide to allow transgender students to use bathrooms matching their gender identity. An injunction was issued this summer by a federal judge in Texas that blocked that kept the letter from taking effect.

The Gloucester County School Board and Grimm both need at least five of the court's eight justices to vote in one direction. Right now the court is split generally with four liberal justices – Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer; and four conservative justices – Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

Breyer voted with the four conservative justices in August to block the injunction that required Gloucester to let Grimm use the boys restroom at the start of the school year while the case proceeds in the Supreme Court. According to the SCOTUSblog, a law blog written by attorneys who follow the Supreme Court closely, he voted that way "as a courtesy."

David Corrigan, the attorney representing the school division, declined to comment on the case's future after the election.

According to the SCOTUSblog, Trump's nominee list has included a range of very conservative potential justices.

Gary McCaleb, senior counsel for the Alliance Defending Freedom, said he hopes the new administration will interpret Title IX in line with the Gloucester School Board's thinking. "The purpose is clear: to protect the privacy of our boys and girls," McCaleb said in a phone interview. "Whether a new justice will be seated before the case is heard, I'm not going to predict that. Anything is possible after (election) night."

The Alliance Defending Freedom represents students, parents and community members in several of the transgender cases, including 50 in Gloucester. The group filed a brief in the Grimm case supporting the school division.

It is possible, McCaleb said, that if the new administration comes in and looks like it has an efficient plan laid out to seat a replacement, the high court could delay hearing the case. "Right now that's just a lot of speculation," he said.

Hubbard can be reached by phone at 757-298-5834.

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