More Uncertainty for Transgender Rights

Tim Burke, Manley Burke, tburke@manleyburke.com

The issue of transgender rights has been a rapidly evolving one.  As Fraternal Law was preparing to go to press, the United States Supreme Court, on March 6^th, changed things again.  The Gloucester County School Board case, which was scheduled to be argued later this month, suddenly was no longer before the U.S. Supreme Court.  On March 6^th, the court dispensed with it in a single sentence:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the 4^th Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

That decision grew out of President Trump’s administration’s two significant steps addressing transgender issues on February 22, 2017.  Both were largely aimed at the issue of sex-segregated facilities such as bathrooms and locker rooms.

One was a letter from Edmond S. Kneedler, the Deputy Solicitor General, sent to the United States Supreme Court with regard to the Gloucester County School Board case that had been scheduled to be argued on March 28^th.  That case involved a legal challenge brought against a local school district by Gavin Grimm, a transgender student seeking to use the men’s room at his high school.  A federal appeals court had held that the Virginia School District had to respect Grimm’s right.  The Supreme Court initially stayed that decision.   As had been scheduled, the short-handed eight-member Supreme Court would have heard the case.

The lawsuit filed on behalf of Grimm was originally dismissed by the federal district court.  But on appeal, the United States Court of Appeals for the Fourth District reversed and would have permitted Grimm to use the same restaurant as others boys as Gloucester High School.

Dozens of groups have weighed in with amicus briefs on one side or the other of the Gloucester case.  Amicus briefs supporting transgender rights have been filed by four dozen major companies, including Apple, IBM and Microsoft, and by the American Bar Association, Mills College, several former officials of the Obama Administration and the NAACP Legal Defense Fund.  Briefs supporting the position of the School Board have also been filed by numerous entities including the Pacific Legal Foundation, the Eagle Forum Education and Legal Defense Fund, groups of professors, religious colleges, and the Cato Institute.  Various states have weighed in on both sides.  Arguments range widely and go well beyond the interests of Gavin Grimm, who by the time the Supreme Court makes its decision will have graduated from Gloucester High School.

Recalling the segregated bathrooms of the south, the NAACP argues that “there is a lengthy and troubling history of state actors using public restrooms and similar shared spaces to sow division and instill subordination.”  While the brief filed by the Women’s Liberation Front and the Family Policy Alliance maintains that equating “sex” to “gender identity” “strips women of their primacy, threatens their physical safety, undercuts the means by which women can achieve educational equality, and ultimately works to erase women’s very existence.”

On March 1^st, the Gloucester School Board sent its own letter to the United States Supreme Court urging the Court to ask the United States Solicitor General to file a brief expressing the view of the United States.  In essence, that requests the Trump Administration to enter the case and make its opinion clearly known.

Secondly, the School Board asks that the Supreme Court delay the scheduled March 28^th oral argument to afford time for the Justice Department to weigh in.  Without saying so, should the Court grant the postponement, it could also mean that by the time the Court hears the case, it will be at full nine justice strength.

Also on February 22^nd, a Dear Colleague letter was sent jointly by the U.S. Departments of Education and Justice, which withdrew “the statements of policy and guidance” contained in the Dear Colleague letter issued by President Obama’s Justice and Education Departments on May 13, 2016.  The earlier letter advised that Title IX required “access to sex-segregated facilities based on gender identity.”

The new letter described the earlier letter this way:

“This interpretation has given rise to significant litigation regarding school restrooms and locker rooms.  The U.S. Court of Appeals for the 4^th Circuit concluded that the term ‘sex’ in the regulations is ambiguous and deferred to what the court characterized as the ‘novel’ interpretation advance in the guidance.  By contrast, a federal district court in Texas held that the term ‘sex’ unambiguously refers to biological sex and that, in any event, the guidance was ‘legislative and substantive’ and thus formal rule making should have occurred prior to the adoption of any such policy.  In August of 2016, the Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned.”

The Trump Administration letter went on to note that further consideration of the legal issues involved was appropriate and that there “must be due regard for the primary role of the states and local school districts in establishing educational policy.”

In addition to addressing the issue of access to bathrooms and locker rooms, the May 2016 Obama Administration Dear Colleague letter did address the impact of Title IX on various groups.  It provided the best guidance to that date on the impact of admitting transgender members to single-sex organizations and specifically said with regard to social fraternities and sororities that:

“Title IX does not apply to the membership practices of social fraternities and sororities.  Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members.  Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.”

While the more recent Trump administration Dear Colleague letter withdrew “the statements of policy and guidance reflected in … [the] Dear Colleague letter on transgender students … dated May 13, 2016,” it appears clear that the action was directed specifically at access to boys and girls restrooms, and shower rooms in K-12 grades.  The Trump administration letter is not likely to discourage institutions of higher education from continuing to promote trans-inclusive policies.  It remains likely that Greek groups seeking to expand onto a new campus may be asked by the host institution what their policy is on transgender members.

While the Gloucester case could have provided greater insight into this issue if decided by a 4 to 4 court, it could have told us very little at all.

There are already numerous cases involving transgender issues already pending.  No doubt there will be more.

Fraternal Law will continue to report on these cases as the issues presented.