What began in November 2014, as a 17-year-old student’s right to use the boys bathroom is now before the nation’s highest court and has vaulted transgender rights into the national spotlight.
Gavin Grimm and the ACLU argue that a school board policy limiting bathroom usage based on the gender assigned at birth is unconstitutional under the Fourteenth Amendment Equal Protection Clause and Title IX prohibition against sex discrimination. Both the United States Department of Education and the United States Court of Appeals for the Fourth Circuit found in Gavin’s favor. However, the school Board petitioned for a stay from the United States Supreme Court. The Supreme Court not only granted the Board’s stay but also on October 28, 2016, decided to hear the case.
In his Advocate article entitled, “How Trans Rights Could Fair on Trump’s Supreme Court,” Rolen examines the possible outcomes. Rolen points out that many conservative judges, most recently Justice Clarence Thomas in United States Aid Funds v. Bible, have criticized the narrow legal basis for the Fourth Circuit’s decision: deference to an administrative agency’s interpretation of its own regulations: or, Auer deference.
Furthermore, Rolen goes on to explain that should the Court , in its present composition, reach the ultimate issue of whether “sex” as defined by Title IX includes transgender status, “Many legal observers believe that neither the case nor the issue are sufficiently factually developed.” Therefore, any ruling on the ultimate issue may feel unsatisfactory.