****UPDATE: The US Supreme Court sent the case back to the Fourth Circuit Court of Appeals on Monday morning without issuing a ruling.****
The question of whether sex includes gender identity is sweeping the nation as a case is prepared to go against the Supreme Court at the end of March.
The Obama Administration had implemented a guidance in May that enforced rights by transgender students to use the bathrooms or locker rooms that aligned with their gender identities.
The guidance cited federal law Title IX.
But Trump rescinded that rule and said it was up to the states to regulate who uses what bathroom in schools. But the administration left the rest of the law alone.
“What is so peculiar about what just happened in the Department of Education is they only withdrew the portion of the guidance that specifically relates to restrooms,” said Civil Rights Attorney Shannon Minter.
Minter is also the legal director of the National Center for Lesbian Rights in San Francisco. He said the decision seemed to come out of left field.
“We were disappointed by this and did not see this as a foregone conclusion,” he said. “Trump, during the campaign made some statements that as far as he was concerned, transgender people should be able to use whichever bathrooms they want, or bathrooms that correspond to their identity, and we understand from the limited information that we have about what’s going on inside the Administration that there was some very serious opposition internally to doing this.”
He also said there’s a good chance that the decision is almost completely political.
“The state’s rights argument is nonsensical,” he said. “This is a federal statute. They’re not even disputing that the statute protects transgender students in other respects.”
But a case has been moving through the courts because of a lawsuit filed by a high school student in Virginia. 17-year-old Gavin Grimm came out as transgender, and was permitted to use the boys’ restroom until parents complained. The school board then enacted a policy that requires all students to use the bathrooms that coordinate with the sex on their birth certificates.
The case is set to be heard in the Supreme Court on March 28. The court will have to decide whether gender identity is included under the 14th Amendment’s equal protection under the law, and if it should be included in non-discrimination based on sex.
Minter said Trump’s decision has potential to be challenged in courts anyways, since it only mentions gender identity not classifying as sex in regards to bathrooms.
“I do think it creates some potential vulnerability for this thing to be challenged in courts because on the face of it,” he said. “It is so deeply incoherent and irrational.”
Depending on how the Supreme Court rules in March, it could reverse the administration’s decision, or make legal distinction between gender identity and sex.