WASHINGTON -- The Supreme Court agreed Friday to take up the controversial issue of transgender rights, instantly transforming what had loomed as a holding-pattern term with only eight justices into one featuring another major social policy issue.
The justices will consider a Virginia school district's challenge to Obama administration guidelines requiring that schools allow transgender students to use restrooms matching their chosen gender, rather than birth gender.
A federal appeals court ruled in April for high school student Gavin Grimm in one of several lawsuits challenging the Department of Education rule. The justices could have sidestepped the issue pending action by other appellate courts but decided to wade in now. The case is likely to be heard by April and decided by late June.
While the focus of the case is on discrimination in education, the court's ruling could have a major impact on other forms of bias against transgender men and women, such as in employment, said Shannon Minter, legal director of the National Center for Lesbian Rights.
"For transgender people, the stakes of this case are incredibly high," Minter, a transgender man, said. "Whatever the court rules in Grimm may ensure that transgender people are accepted and included as equal members of our society, or it may relegate them to outsiders for decades to come."
Grimm, a 17-year-old high school senior in Gloucester County, Virginia, identified as a boy several years ago and eventually sought to use the boys' bathroom in school. He is represented by the American Civil Liberties Union, whose legal director, Steven Shapiro, had said, “We want to get it resolved for his benefit as fast as we can.”
Ironically, though, Grimm's opportunity to set a nationwide standard for transgender students will work against his own wishes during his senior year. That's because the Supreme Court in August blocked his victory at the U.S. Court of Appeals for the 4th Circuit from taking effect while it considered the school board's petition. Had the high court turned down the case, Grimm would have won boys' bathroom rights immediately.
“I never thought that my restroom use would ever turn into any kind of national debate. The only thing I ever asked for was the right to be treated like everyone else,” Grimm said in a statement issued by the American Civil Liberties Union, which is representing him in court.
“While I’m disappointed that I will have to spend my final school year being singled out and treated differently from every other guy, I will do everything I can to make sure that other transgender students don’t have to go through the same experience.”
Twenty-three states, including North Carolina and Texas, have challenged the administration's right to interpret its own regulations without legislative action or judicial review. And several conservative justices have argued in the past that agencies have no such power. The court refused Friday to take up that broader issue as part of Grimm's case.
By agreeing to hear the case now, the justices likely are hoping that a ninth colleague will be confirmed by the time the case is heard. But with Senate Republicans blocking President Obama's nomination of federal appeals court Judge Merrick Garland, that is far from guaranteed.
If the court goes forward with only eight justices, it could produce a tie vote that leaves the lower court's decision intact. That would be a victory for Grimm and the ACLU, but without national precedent.
The battle over so-called bathroom bills has played out in many states as conservative lawmakers seek to force students to use facilities that correspond to their gender at birth, and transgender students fight for the right to follow their gender identity.
Grimm's case is based on the Constitution’s guarantee of equal protection as well as Title IX, a federal law that bars sex discrimination in education. The Education Department invoked that law when issuing its guidelines in May, threatening federal enforcement -- including the loss of federal education funds.
Kyle Duncan, the lawyer for the Gloucester County School Board, argued in court papers that under Title IX, "our nation’s schools have structured their facilities and programs around the idea that in certain intimate settings, men and women may be separated 'to afford members of each sex privacy from the other sex.'" The appeals court's ruling "turns that longstanding expectation upside down," he said.
The Virginia lawsuit had been decided by two federal courts by the time the administration weighed in. Since then, about two dozen states have filed suit against the guidelines.
In August, a federal judge in Texas sided with school districts opposed to the directive, preventing the Education Department from implementing its guidance nationwide. Judge Reed O'Connor said federal agencies exceeded their authority under the 1972 law banning sex discrimination in schools. That case is now pending before another federal appeals court.
Without Supreme Court intervention, school districts in the 4th Circuit -- which includes Virginia, Maryland, North Carolina, South Carolina and West Virginia -- would be bound by the appeals court ruling in Grimm's favor, while all other school districts would be bound by the Texas judge's decision blocking the administration policy.
The Gloucester County School Board's appeal has garnered broad support from conservatives, including 20 states, 114 members of Congress, and former Education Secretary William Bennett, who argued that under Title IX the term "sex" refers to an "immutable physiological characteristic, not an individual's self-reported 'internal sense of gender.'"
But Sarah Warbelow, legal director at the Human Rights Campaign, the nation's largest gay rights organization, said 18 states already allow transgender people to use facilities consistent with their gender identity without problems.
“The Supreme Court’s ultimate decision in this case will have a profound impact on transgender youth across the country,” Warbelow said.