Supreme Court has reasons to duck
transgender rights fight
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[September 26, 2016]
By Lawrence Hurley
WASHINGTON (Reuters) - The U.S. Supreme
Court is set to decide within weeks whether to hear a major transgender
rights case for the first time, a dispute involving which bathroom a
Virginia high school student can use, but the justices have reasons to
duck the issue.
The case involves a 17-year-old transgender student named Gavin Grimm,
who was born female but identifies as male and is mounting a legal
challenge to gain the right to use the boys' bathroom at his public high
school in Gloucester County, Virginia.
The local school board is asking the justices to hear its appeal of an
April 19 ruling by the Richmond-based 4th U.S. Circuit Court of Appeals
that found that transgender students are protected under U.S. laws that
bar sex-based discrimination.
If the high court refuses to hear the case, the justices would leave in
place the groundbreaking appeals court ruling in favor of transgender
rights that Grimm could use the bathroom of the student's choice. If the
justices hear it, it would be one of the biggest cases of the 2016-17
term that opens Oct. 3.
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The Supreme Court remains shorthanded with eight justices, split with
four liberals and four conservatives, following the Feb. 13 death of
Antonin Scalia. Legal experts say the court may have an incentive to
dodge the issue, the latest front line in the battle over lesbian, gay,
bisexual and transgender rights.
The high court so far has shown an inclination for its new term toward
taking up technical, narrow cases, such as several on intellectual
property rights, while it remains down one justice. This may be because
the court is eager to avoid issuing 4-4 deadlocked rulings, which
happened on four occasions after Scalia's death.
The Republican-led Senate has refused to consider confirmation of
Merrick Garland, President Barack Obama's nominee to replace Scalia.
There are several reasons why the court could turn away the appeal,
including the fact that there are other cases on the same issue pending
in lower courts, meaning the justices could weigh in at a later date.
In one of those cases, a U.S. district court judge on Aug. 22 issued a
nationwide injunction sought by Texas and 12 other states preventing the
Obama administration from enforcing guidance telling schools to allow
transgender students to use the bathroom of their choice.
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![](../images/092616pics/news_e7.jpg)
The flag of diversity flutters at the U.S. Embassy in San Jose,
Costa Rica, as a show of support for the lesbian, gay, bisexual, and
transgender (LGBT) community in Costa Rica, June 3, 2016.
REUTERS/Juan Carlos Ulate
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The Supreme Court often lets novel legal issues like transgender
bathroom rights percolate in lower courts before taking a case, as
it did with gay marriage before ruling in 2015 to allow it
nationwide.
The Supreme Court also frequently refuses to take cases in which the
various regional federal appeals courts have not issued conflicting
rulings. The ruling by the 4th U.S. Circuit Court of Appeals was the
first of its kind.
Steven Shapiro, legal director of the American Civil Liberties
Union, said the case "doesn't meet any of the traditional criteria"
to warrant the court hearing the school board's appeal. The ACLU
represents Grimm.
Conservatives who want the Supreme Court to hear the appeal point to
the high court's action last month when it voted 5-3 to temporarily
block the appeals court decision from going into effect, a move that
prevented Grimm from using the boys' bathroom when the new school
year began while the case remains under appeal.
"My gut is there's a good chance they will take this one," said Matt
Sharp, a lawyer with the conservative Christian legal group Alliance
Defending Freedom.
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But Justice Stephen Breyer made clear that he cast the decisive vote
to grant the school board's stay request merely as a courtesy to his
colleagues. If the court were to hear the case, many think Breyer
would vote with his fellow liberals, meaning the court could split
4-4 and leave in place Grimm's appeals court victory.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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