TRANSGENDER CASE SENT BACK TO APPEALS COURT

Va. teen’s restroom rights relied on policy that has since shifted

WASHINGTON The Supreme Court will not decide the hot- button issue of transgender restroom 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’ restroom and locker room 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 last year’s ruling by the U. S. Court of Appeals for the 4th Circuit and give that court another chance to consider the case.

Lawyers for Grimm and the Gloucester County School Board had urged the court last week to decide the case despite the change in the federal government’s position. Nevertheless, the justices likely reasoned that they would benefit by the lower court’s focus on other legal issues — particularly whether a federal law barring sex discrimination in education incorporates gender identity.

“This is justice delayed, not justice denied,” ACLU lawyer Joshua Block said. Noting the case could be back to the Su- preme Court in a year or two, he said, “This is really an urgent situation for transgender students around the country.”

Grimm, who has been using a nurse’s station bathroom while the legal skirmish continues, expressed disappointment that the high court’s order “is going to drag this conversation out for even longer, which is going to keep transgender kids ... in limbo for an extended period of time.”

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 facilities that match their gender identity, rather than their birth gender.

The school board issued a statement saying it “looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law.”

As that case is proceeding, others involving transgender rights are percolating in North Carolina, Ohio, Wisconsin and Pennsylvania.

The most prominent case challenges North Carolina’s law requiring transgender students to use restrooms corresponding to their sex at birth. On Wednesday, the 4th Circuit set May 10 for oral argument in that case.

Kyle Duncan, the Virginia 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.” He urged the court to hear the case after soliciting the Justice Department’s views.

The ACLU’s 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.”

The delay now may provide time for Supreme Court nominee Neil Gorsuch to join the court, which could help the school board.

With hearings on Gorsuch 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.

“This is justice delayed, not justice denied.” ACLU lawyer Joshua Block

BRAD BARKET, GETTY IMAGES, FOR NATIONAL GEOGRAPHIC Gavin Grimm, 17, sued when he was denied use of restrooms in his Virginia high school that correspond to his gender identity.