Gavin Grimm’s attorney vows to continue fight after Supreme Court scraps landmark transgender case
LGBT rights lawyer Josh Brock said that he was disappointed in the Supreme Court’s decision Monday to avoid ruling on his client’s case regarding bathroom access but that this was merely a detour — not a defeat.
“What’s really unfortunate is that there’s going to be so many trans kids held in limbo in the meantime, suffering some pretty significant consequences from the delay,” he told Yahoo News shortly after the decision.
Brock, the senior staff attorney for the LGBT Project of the American Civil Liberties Union, is the lead counsel for Gavin Grimm, 17, a transgender student suing the Gloucester County School Board for access to the boys’ bathroom at his public high school in Virginia.
The Supreme Court, which had previously set arguments for March 28, announced Monday morning that it would not rule in Gloucester County School Board v. G.G. — sending the case back to the 4th U.S. Circuit Court of Appeals in Richmond, Va.
“This is just a procedural delay, not a merits ruling by any means. It just means the Supreme Court wants to wait for the 4th Circuit to rule on the issue first before deciding it themselves. That’s not unusual,” Brock told Yahoo News. “This just means we go back to the 4th Circuit and we have them rule, and then we’re back up at the Supreme Court again, if necessary, after that. I think it’s just a detour.”
The 4th Circuit already sided with Grimm in April 2016 while deferring to the Obama administration’s landmark transgender rights initiative, instructing public school officials to let transgender students use bathrooms and other facilities that corresponded with their gender identity. On Wednesday, however, President Trump rescinded these guidelines.
Now it’s up to the 4th Circuit to decide — with the new federal guidelines no longer in effect — whether Title IX of the Education Amendments of 1972, which concerns schools that receive federal funding, protects transgender students. Essentially, the appeals court needs to consider the scope of Title IX and whether it applies to trans people.
Sarah Warbelow, the legal director for the Human Rights Campaign, coordinates the organization’s advocacy concerning litigation that affects the LGBT community. She said they wanted a final determination from the Supreme Court affirming that Title IX does in fact cover transgender students.
“This is incredibly disappointing. It’s a delay of justice for transgender students, but it’s not a denial,” she told Yahoo News.
Through the Supreme Court isn’t about to set a nationwide precedent for transgender rights, Warbelow pointed out, the lower court’s decision will set a precedent for public schools within the 4th Circuit, which includes Virginia, West Virginia, the Carolinas and Maryland.
“So it would have an impact across that whole region. And then it would be influential with other courts. Courts in other states would not be required to follow the 4th Circuit’s determination, but typically courts are influenced by one another.”
Since the Supreme Court had already accepted the case, Brock said, the team around Grimm was hopeful that the top court would keep the case instead of “needlessly delaying it for another year or two.”
“That’s what the overwhelming majority of courts that have ruled on this have already held. And so it’s going to continue percolating in the lower courts and then be teed back up to the Supreme Court again in a year or two,” Brock said.
He said that by rescinding the Obama administration’s guidelines, Trump mostly just took a legal question off the table: Should courts defer to what the Department of Education says? But he said he’s optimistic that the 4th Circuit’s underlying interpretation of Title IX would have been the same anyway.
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