Transgender teen to press Supreme Court case despite Trump administration guidance

Washington Post

Attorneys for a transgender teen who sued his school board for barring him from the boys' bathroom said Thursday that they plan to continue to press his case before the U.S. Supreme Court, despite the Trump administration's decision to withdraw guidance on transgender students that had buoyed his lawsuit.

Lawyers with the American Civil Liberties Union, which is representing 17-year-old Gavin Grimm, said they believe federal laws barring discrimination on the basis of sex apply to transgender people regardless of the administration's position on the matter. They argue that in light of the fresh directive from President Donald Trump's Cabinet - which on Wednesday revoked guidance instructing schools to let transgender students use the bathrooms of their choice - it is imperative that the high court rule on the merits of Grimm's case.

"If anything, the confusion caused by this recent action by the Department of Justice and the Department of Education only underscore the need for the Supreme Court to bring some clarity here," ACLU attorney Joshua Block said in a teleconference with reporters Thursday morning. Grimm's case is scheduled for oral arguments in Washington on March 28.

The remarks came as fallout continued from the Trump administration's decision to roll back guidance from the last two years of Barack Obama's presidency, policies that aimed to explain that transgender students have specific protections under Title IX, a federal law that bars gender discrimination in the nation's schools. The Obama administration's interpretation of that law required schools to allow transgender students to use the bathroom of their choice, regardless of the sex listed on their birth certificates.

In a letter to public school administrators Wednesday, officials with the Justice and Education departments withdrew that guidance, writing that they want to "further and more completely consider the legal issues involved," particularly the role of states and individual school districts in setting education policy.

Some religious conservatives, privacy advocates and officials in red states immediately praised the Trump administration for taking steps that they hope will restore power to the states and help protect the safety and privacy of non-transgender students.

The school board in Gloucester County, Virginia, where Grimm attends high school, also praised the decision, which they suggested could bolster their argument that their policy requiring Grimm to use a separate, single-stall restroom is appropriate.

"The Gloucester County School Board is pleased that the federal government has withdrawn the opinion letter at issue in its case," Board Chair Charles Records said in a statement. "We look forward to explaining to the Supreme Court why this development underscores that the Board's commonsense restroom and locker room policy is legal under federal law."

A federal judge in Texas had temporarily blocked the Obama guidelines in response to a lawsuit from 13 states that accused the Obama administration of federal overreach that usurped state power. Many school districts continued to follow the guidelines because of uncertainty about how to accommodate transgender children and out of a concern that they could be vulnerable to lawsuits or federal penalties.

The Trump administration's decision drew immediate rebukes, not just from advocacy organizations but also from groups such as the American Federation of Teachers, and corporations such as Apple and Microsoft. In the past several years, businesses have been at the forefront of efforts to thwart state legislation viewed as anti-gay or anti-transgender.

"Apple believes everyone deserves a chance to thrive in an environment free from stigma and discrimination. We support efforts toward greater acceptance, not less, and we strongly believe that transgender students should be treated as equals," the company said in a statement. "We disagree with any effort to limit or rescind their rights and protections."

Several Democratic members of Congress, including Senate Minority Leader Charles E. Schumer, N.Y., also expressed their displeasure at the Trump administration's decision.

"Equal rights and equal protection under the law are not issues that should be left up to the states, they ought to be guaranteed for every American, including all students," Schumer said in a statement. "The federal government has an obligation to protect the rights of every citizen, and shirking that responsibility allows states to step in and discriminate. This decision by the Trump administration to roll back protections for transgender students is just plain wrong and cuts directly across the American drive and yearning for equality."

Many liberal-leaning states - as well as school officials in some of the nation's largest districts such as New York, Los Angeles and Philadelphia - moved quickly to reassure their communities that transgender-friendly policies in those jurisdictions would not change.

Superintendent Michelle King said in a statement Wednesday night that the Los Angeles Unified School District embraces all students "and remains committed to affirming a safe, productive learning environment for everyone."

Massachusetts Attorney General Maura Healey said in a statement that "the Trump Administration's decision to reverse the federal government's position on important protections for transgender students will subject vulnerable young people to harassment and intimidation," but said the state already has legal protections in place for transgender people.

"We remain committed to ensuring that transgender students and families are treated with fairness and dignity," Healey said.

Fifteen states have explicit protections for transgender students, according to the Human Rights Campaign, a gay rights group; lawmakers in several other states are working to restrict bathroom access for transgender students. The American Civil Liberties Union, which tracks the legislation, said legislators in 14 states filed 20 bills that could lead to restroom restrictions for transgender people, with some proposing that states penalize schools that violate those restrictions. So far, five of those bills have failed.

The change in policy will affect a number of pending court cases, but none is being watched more closely than Grimm's.

Grimm sued the Gloucester County School Board two years ago after it barred him from using the boys' bathroom. Even though he recently has his birth certificate amended to describe him as male, his school still requires him to use a separate single-stall restroom, which he has argued unfairly stigmatizes him.

Obama's guidance was issued a month after Grimm won a victory at the U.S. Court of Appeals for the 4th Circuit, which deferred to the Obama administration's position on transgender student rights, citing case law that gives deference to the executive branch's interpretation and application of federal rules. The court noted that future administrations could interpret such rules differently.

The Supreme Court could decide to return the case to the lower court, or it could decide to rule more broadly on whether Title IX protects the right of transgender students to use the restroom that aligns with their gender identity. Both Gloucester County and Grimm have asked the court to rule on that broader question.

The administration's letter was the source of some disagreement between the two issuing departments, with Attorney General Jeff Sessions eager to rescind the Obama administration's guidance as court proceedings in related cases approached, and Education Secretary Betsy DeVos keen to leave it in place. Unlike Arne Duncan, Obama's education secretary for seven years, DeVos does not have a close personal relationship with the president she serves; she also lacks the experience and political capital Sessions garnered as a Republican senator.

Sessions is widely known to oppose expanding gay and transgender rights, and DeVos's friends say she personally supports those rights. The new letter is sure to ignite another firestorm for DeVos, who is fresh off her contentious nomination fight and has drawn protests from parents and teachers who believe she is unqualified for the job.

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