RICHMOND, Va. — The U.S. Supreme Court’s decision to back out of a lawsuit over transgender students’ bathroom access is a disappointment that will keep transgender children in limbo, said 17-year-old plaintiff Gavin Grimm, who’s become a national face of the issue.
But Grimm, who sued his eastern Virginia school district to be able to use the boys’ bathroom, said Monday that he’s ready to keep up his fight.
“I am still as passionate and as happy to be doing this as ever,” he said. “I think 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.”
Grimm spoke to reporters hours after the justices issued a one-sentence order handing his case back to a Richmond appeals court without reaching a decision. That means attention now will turn to the Richmond court and other appellate panels around the country that are grappling with rights of transgender students to use school bathrooms that correspond to their chosen gender, not the one assigned at birth.
A high school senior, Grimm likely won’t see the issue settled before he graduates, but he said he accepted that long ago.
“I already knew that the decision wouldn’t be handed down until after my senior year anyway. ... For me it’s more about the impact it could have on trans kids who come after me,” he said.
Grimm said the order will “drag this conversation out,” leaving school-age kids “in limbo for an extended period of time.”
“It’s not just about bathrooms but the rights for trans people to exist in public spaces. . If you had to plan your day around not having a bathroom in public, what kind of nightmare would that be?” he said, adding it’s “not feasible to keep trans people out of restrooms.”
Grimm’s case had been scheduled for argument in late March. Now, the 4th U.S. Circuit Court of Appeals will be tasked with evaluating the federal law known as Title IX and the extent to which it applies to transgender students. Lawsuits involving transgender students are making their way through the courts in at least five other states: Illinois, North Carolina, Ohio, Pennsylvania and Wisconsin.
Joshua Block, an American Civil Liberties Union attorney who represents Grimm, said he remains convinced that courts ultimately will side with transgender students.
“Title IX means the same thing today as it meant yesterday. Lower courts already have held that it protects trans kids,” he said.
In a statement relayed by school board lawyer Kyle Duncan, the board said it “looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law.”
The Supreme Court’s action follows the Trump administration’s recent decision to withdraw a directive issued during Barack Obama’s presidency that said which bathroom to use should be based on students’ gender identity.
The administration action triggered legal wrangling that ended with Monday’s order. In essence, the federal appeals court in Richmond, Virginia, had relied on the Obama administration’s interpretation of Title IX to side with Grimm. The appeals court accepted the administration’s reading of the law without deciding for itself what the law and a related regulation on same-sex bathrooms and locker rooms mean.
No appeals court has yet undertaken that more independent analysis, and the Supreme Court typically is reluctant to do so without at least one appellate opinion to review, and usually more than one.
Another possible explanation for Monday’s order is that the court might want more of a societal consensus to develop before it issues a ruling in favour of transgender rights, said John Neiman, an Alabama lawyer who served as a law clerk to Justice Anthony Kennedy.
The court’s reluctance to take on transgender rights now may have been underscored by the high court vacancy caused by the death of Justice Antonin Scalia nearly 13 months ago and the refusal of Senate Republicans to consider Obama’s nomination of Judge Merrick Garland to fill the seat. Eleven days after taking office, President Donald Trump nominated Judge Neil Gorsuch for the court.
Ahead of the scheduled Supreme Court arguments, Grimm’s case drew attention from all over the world. Apple, IBM and Microsoft were among the 53 companies that signed onto a brief filed last week urging the court to rule in his favour. He’s been profiled in national media and made an appearance on “The View.” At the Grammy Awards last month, actress and transgender rights advocate Laverne Cox told the audience to “please google ‘Gavin Grimm.’”
He said Monday that he’d been overwhelmed by the “incredible” support, especially from the technology companies. “You know, I’m a teenager, I like my tech,” he joked.
Being in the spotlight has been stressful, he said.
“But it’s been worth it,” Grimm said. “I think that it’s absolutely all worth it.”