How Trans Rights Could Fare on Trump's Supreme Court

In a nation of laws, it is apparently inevitable that the most highly personal, private, and soul-wrenching human functions boil down to a legal technicality. Such is the case with Gavin Grimm. Although Gavin rests at the epicenter of the sociological debate, he is a real person. As the father of five teenagers, it is striking to me that Gavin is simply a 17-year-old transgender boy. While other teenagers worry about prom and graduation, he has already been diagnosed with gender dysphoria and gone through hormone therapy. In 2014, before entering high school, Gavin and his parents met with high school staff and explained that he would be attending as a male. Gavin was provided separate restroom facilities but quickly found them stigmatizing and isolating. The principal allowed him to use the boys' restroom. Although Gavin had absolutely no incidents using the restroom, parents learned of a transgender boy using the boys' facilities and quickly contacted the Gloucester County School Board. In November 2014, board member Carla Hooks proposed a policy that communal restroom use be based on the gender assigned at birth, and those with gender identity issues be provided an alternative private facility.

The policy passed 6-1. Because of that, school administrators could not allow Gavin, or any other student, to use restroom facilities consistent with their gender identity even if they wanted to. All of a sudden, Gavin is a national figure. For the last two years, Gavin has not only been forced to use separate bathroom facilities but also to give interviews to major media outlets. Gavin believes the school board's vote has turned him into "a public spectacle," and he feels like a "walking freak show," so he avoids using the restroom at school. He does not drink liquids and holds it during the day. As a result, he has repeatedly developed painful urinary tract infections. Although most of us of have experienced the discomfort of an urgent pressure on the inner wall of our bladder, none of us have experienced the amount of public scrutiny experienced by Gavin.

After the school board passed Hooks's policy, Gavin -- with the help of the American Civil Liberties Union -- asserted his rights by arguing that the policy was unconstitutional under the Fourteenth Amendment's equal protection clause and a violation of Title IX prohibitions against discrimination based on sex; the Department of Education famously filed an opinion letter this year indicating that Title IX of the Education Amendments of 1972 protects trans students. The U.S. Court of Appeals for the Foruth Circuit agreed. Because Gavin could again use the boys' bathroom, the seven members of the board petitioned for and received a stay from the U.S. Supreme Court. This meant,the Fourth Circuit's decision would not take effect until our nation's highest court decided what to do. On October 28, the Supreme Court decided to hear Gavin's case. This was not necessarily good news for Gavin. If the Supreme Court chose not to hear the case, the Fourth Circuit's decision would have gone into effect, and Gavin could use the boys' bathroom. A conservative Supreme Court plurality has decided to hear the case hinging on a legal theory that conservative justices, most recently Justice Clarence Thomas in United States Aid Funds v. Bible, have criticized. Not exactly the setting that LGBT people may want for their test case on transgender rights.

Interestingly, the Supreme Court's analysis of the Grimm case could end there. The Supreme Court has on many occasions throughout history declined to rule on issues that need not be ruled upon. Remember, that the Grimm case still has a pending equal protection cause of action. If the Supreme Court chooses that path, LGBT Americans may feel as though they are being denied the ultimate victory they seek, an unequivocal pronouncement that Title IX protects transgender students.

It is important to understand that the Supreme Court could find that Title IX allows schools to exclude transgender students from using restrooms consistent with their gender identity. This would be a devastating setback for transgender rights. Neither the statute nor the implementing regulations include the term "transgender." Groups opposing LGBT rights strongly advocated for Supreme Court review, and the ACLU, in Gavin's brief in opposition, argued that it was premature for the court to rule on this issue. The ACLU cited the absence of other circuit court opinions and a final judgment. Also, Gavin's dispute only involves restrooms, not locker rooms. Because of this, the court will need to address the distinguishable privacy concerns raised by locker-room access in a different case. Many legal observers believe that neither the case nor the issues are sufficiently factually developed. Therefore, even a positive ruling on the ultimate interpretation of "sex" under Title IX may feel unsatisfactory.

So where does that leave us? It is unlikely that an opinion letter from the Department of Education would be so momentous so as to determine when and where thousands of people can perform their most natural bodily functions. The LGBT community should embrace Gavin and the Supreme Court's decision to hear his case. However, should the court determine that Title IX does not protect trans students, the community shouldn't get demoralized. History has taught us that incremental, arduous change is more likely to become lasting change. A Chinese proverb says, "It is better to take many small steps in the right direction than to make a great leap forward only to stumble backward." This is a step in the right direction.

GREG ROLEN is a partner at Haight Brown & Bonesteel LLP, one of California's leading law firms since 1937. He is a member of the public entity, employment and labor, transportation law and appellate practice groups. He can be reached at (415) 281-7654 or grolen@hbblaw.com.