- The Washington Times
Monday, March 6, 2017

The U.S. Supreme Court on Monday directed a lower court in Virginia to reconsider its decision on a school district’s bathroom policy in light of the Trump administration’s nixing an order that required schools to allow transgender students to use whichever facilities they choose.

But proponents of transgender rights say the nation's highest court will be forced to weigh in on the matter sooner or later.

The court’s one-sentence order sent the case back to the U.S. Court of Appeals for the 4th Circuit. The appellate court initially sided with Gavin Grimm, a transgender student from Virginia who sued the Gloucester County School Board over the right to use the boys’ restroom.

In the short term, the decision empowers states and school districts to determine how to accommodate transgender students without infringing upon the privacy rights of others.

Kerri Kupec, legal counsel for the Alliance Defending Freedom, said school officials “should be free to protect their students’ privacy, safety, and dignity without federal government interference.”

“The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” Ms. Kupec said in a statement.

Legislatures in 14 states have considered or are considering bills this year that would regulate intimate public facilities on the basis of biological sex, according to the National Conference of State Legislatures. One state, North Carolina, has such a law on the books.

Sixteen states prohibit discrimination in education on the basis of gender identity, according to the National Center for Transgender Equality.

Ultimately, the transgender rights movement says the ball is still in the judiciary’s court.

Joshua Block, senior staff attorney for the American Civil Liberties Union, which represents the transgender student, said there is too much legal activity over transgender bathroom access for the Supreme Court to stay silent for long.

He said topical lawsuits are either before or on their way to the U.S. Courts of Appeals for the 3rd, 4th, 6th and 7th Circuits. A number of state courts, including the Supreme Court of Virginia, also are hearing cases to determine the meaning of Title IX, the federal statute barring discrimination in education on the basis of sex.

The Supreme Court could hear a case resolving the matter as early as next term, Mr. Block said.

“I don’t know if, by the time that makes it to the court, it would be soon enough for it to actually be heard next term, but I would think either next term or the term after,” Mr. Block said on a press call Monday.

By that time, Judge Neil Gorsuch could be installed as the Supreme Court’s ninth justice, giving conservatives what they hope is a reliable vote against the transgender movement’s interpretation of Title IX.

But if the same court coalition that created a constitutional right to same-sex marriage holds, Mr. Block said Judge Gorsuch’s appointment will have little bearing on the outcome of the case.

“I think that if the same lineup for this case is similar to the lineup in cases where the court has ruled for same-sex couples, then I think it’s just a difference between a 5-3 decision and a 5-4 decision,” he said. “I think that if the only change on the court that happens is the addition of Judge Gorsuch, I think that would probably leave things where they currently are.”

John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, said on which side Justice Anthony M. Kennedy lands is anyone’s guess.

“I have no idea,” Mr. Eastman said. “He’s a bit of a wild card.”

The Education Department and Justice Department rescinded an Obama-era order last month compelling public schools to regulate intimate facilities on the basis of gender identity. The Trump administration said the matter is best left to the states.

Sarah Warbelow, legal director for the Human Rights Campaign, said the Supreme Court’s decision not to go forward with the case was a “direct result” of that order.

“Now, thousands of transgender students across the country will have to wait even longer for a final decision from our nation’s highest court affirming their basic rights,” Ms. Warbelow said in a statement.

Gavin Grimm, the transgender student, said he will continue to fight for his right to use the restroom of the gender with which he identifies.

‚Äč”I am still as passionate and happy to be doing this as ever,” Gavin said on the press call Monday. “I think that everyone is just as empowered and ready for it as we’ve always been. And if it took 10 years, I’d stick with it.”

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