Trump's transgender move puts spotlight
on Supreme Court case
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[February 24, 2017]
By Lawrence Hurley
WASHINGTON (Reuters) - The Trump
administrationís move on Wednesday to rescind guidance allowing
transgender students to use the bathrooms of their choice has raised the
stakes for an upcoming U.S. Supreme Court case that could deliver a
landmark decision on the issue.
The eight justices are due to hear oral arguments on March 28 on whether
the Gloucester County School Board in Virginia can block Gavin Grimm, a
female-born transgender high school student, from using the boys'
bathroom. A ruling is due by the end of June.
A key question in the case is whether a federal law, known as Title IX,
which bars sex discrimination in education, covers transgender students.
The Education Department under Democratic President Barack Obama said in
guidance to public schools last May that it does, but the Republican
Trump administration withdrew that finding on Wednesday.
The high court on Thursday asked the lawyers involved to file letters by
March 1 giving their views on how the Trump action should affect
consideration of the case.
Lawyers for Grimm say that the definition of sex discrimination in Title
IX is broad and includes gender identity. The school board maintains
that the law was enacted purely to address "physiological distinctions
between men and women."
If the Supreme Court rules that Title IX protects transgender students,
the decision would become the law of the land, binding the Trump
administration and the states.
"This is an incredibly urgent issue for Gavin and these other kids
across the country," said Joshua Block, a lawyer with the American Civil
Liberties Union (ACLU) who represents Grimm.
The Trump administration's announcement "only underscores the need for
the Supreme Court to bring some clarity here," he added.
The administration on Wednesday did not offer its own interpretation of
Title IX, with the Justice Department telling the court only that it
plans to "consider further and more completely the legal issues
The administration is not directly involved in the case.
Lawyers for both Grimm and the Gloucester County School Board have urged
the court to decide whether Title IX applies to transgender students
rather than taking a narrower approach by sending the case back to a
In a court filing on Thursday, the ACLU said that, regardless of the
administration's position, the court "can - and should - resolve the
underlying question of whether the Boardís policy violates Title IX."
The school board's lawyers made similar comments in their most recent
court filing, saying that the meaning of the federal law is "plain and
may be resolved as a matter of straightforward interpretation."
[to top of second column]
Women chant during a protest against the Trump administration's move
to rescind guidance allowing transgender students to use the
bathrooms of their choice, in Manhattan, New York, U.S., February
23, 2017. REUTERS/Bria Webb
But the court could take a more cautious approach and send the case back
to the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. That
court's April 2016 ruling in favor of Grimm relied on the Obama
administration's interpretation of the law.
Kyle Duncan, a lawyer representing the school board, said the court
must at a minimum throw out the appeals court decision because "the
entire basis for that opinion" was the no-longer extant Obama
JUSTICE KENNEDY: PIVOTAL VOTE?
With the eight-justice court likely to be closely divided, Trumpís
Supreme Court nominee, conservative appeals court judge Neil
Gorsuch, could end up casting the deciding vote if he is confirmed
by the U.S. Senate in time. Otherwise, the court, which is divided
equally between liberals and conservatives, could split 4-4, which
would set no nationwide legal precedent.
Clues as to how the high court could rule can be gleaned from its
decision last August to temporarily block the appeals court decision
in Grimm's case from going into effect. That emergency request from
the school board did not require the justices to decide the merits
of the case.
The vote in favor of the school board was 5-3, with Justice Stephen
Breyer, a liberal, joining the four conservative justices. Breyer
made clear in a statement at the time that his vote would not
dictate how he would approach the case if the court took the issue
That decision indicated that the court is likely to be closely
divided at oral argument. Grimm's hopes may rest in Justice Anthony
Kennedy, a conservative who voted against Grimm last summer but has
sometimes sided with liberals in major cases, including several on
But even lawyers closely following the case are not sure which way
Kennedy could go.
"If I could predict that, I would be down in the casino," said Gary
McCaleb, a lawyer with conservative Christian legal group Alliance
Defending Freedom, which backs the school board.
For graphic on transgender rights and "bathroom bills", click:
(Reporting by Lawrence Hurley; editing by Noeleen Walder and
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