WASHINGTON -- The Supreme Court will not decide the hot-button issue of transgender bathroom rights after all.
The justices on Monday vacated a lower court's ruling in favor of Gavin Grimm, a 17-year-old Virginia high school senior seeking to use the bathroom corresponding to his gender identity. It did so because the Trump administration withdrew guidance to schools that had instructed them to grant transgender students' bathroom preferences. The case had been scheduled for oral argument later this month.
By rescinding the Obama administration's policy, the Departments of Justice and Education eliminated the basis for the appeals court's earlier decision in Grimm's favor. While the Supreme Court could have decided the case on other grounds, it decided instead to wipe out the initial ruling of the U.S. Court of Appeals for the 4th Circuit and give it another chance to consider the case.
Lawyers for Grimm and the Gloucester County School Board had urged the court to decide the case despite the change in the federal government's position on the issue. But the justices likely reasoned that they could deadlock 4-4 on the case while federal appeals court Judge Neil Gorsuch's nomination is pending, rendering their decision moot.
The lawyers had said the high court still could decide whether a 1972 prohibition against sex discrimination in education requires that students can use sex-separated facilities based on their gender identity.
"This is a detour, not the end of the road, and we’ll continue to fight for Gavin and other transgender people to ensure that they are treated with the dignity and respect they deserve,” ACLU lawyer Joshua Block said.
When the high court agreed in October to hear the school board’s appeal, Election Day was less than two weeks away and Hillary Clinton led in the polls. The possibility that the next administration would reverse the Obama administration’s guidance to school districts seemed remote.
But Trump's election led to the withdrawal of the Obama administration's guidance to the nation's schools that transgender students be allowed to use bathrooms that match their gender identity, rather than their birth gender.
Kyle Duncan, the school board's lawyer, warned the justices last week that delaying action could lead to "enormous litigation costs as well as needless and divisive political controversy."
At the same time, Block said a delay "would provide no benefit to the court and would needlessly prolong harm to transgender students across the country awaiting this court’s decision."
Missing from both letters was any reference to Gorsuch's pending nomination. With hearings on that slated to begin March 20, the Senate could confirm the 49-year-old judge in time to hear April's oral arguments, and certainly those lined up for the 2017 term beginning in October. By that time, Grimm's case could be back before the high court.