Supreme Court to Weigh in on Transgender Bathroom Panic

The Supreme Court announced this afternoon it will hear the case of a transgender student in Virginia fighting with his school district over which bathrooms and facilities he should be allowed to use.

The transgender teen, Gavin Grimm, has been ordered by the school board in Gloucester County, Virginia, to refrain from using the male restrooms or facilities at his school. They do offer unisex bathrooms, but Grimm is fighting for the right to use the mens’ room.

Grimm’s argument (and the argument by the Department of Education and Department of Justice) is that denying him access to the bathroom of his chosen gender expression is a form of sex discrimination under Title IX of the Education Amendments of 1972. Opponents argue against such a broad reading.

Title IX has nothing to say about how to treat transgender students and that become part of the conflict. Under a previous Supreme Court precedent (known simply by the “Auer deference” as shorthand), government agencies are generally given deference from the courts to determine how to implement statutes or regulations unless they do something that is contradictory to what the law clearly says.

Some federal courts have agreed with Grimm (and the Obama administration) that such federal deference should apply here, but some schools (and states) have resisted, and other judges have ruled that the administration hasn’t followed proper procedures. It seemed inevitable that the Supreme Court would eventually get involved. The court put a temporary stay on the most recent ruling (in Grimm’s favor) while it considered whether to take the case.

Today they said yes. The school district asked the Supreme Court to consider the entire concept of the Auer deference precedent, but the court said it will not do so. The Supreme Court will consider whether the Auer deference should apply to the letters sent out by the administration to attempt to resolve this culture war conflict and, much more importantly, whether the administration is correct that Title IX obligates school systems to respect the chosen genders of transgender students to use sex-segregated facilities that match the way they present themselves.

More information about the case from SCOTUSblog here.