Supreme Court Sends Transgender Case Back to Lower Court

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, March 8, 2017

On Monday, the Supreme Court remanded the case of transgender teen, Gavin Grimm, who is seeking to be able to use the boys’ bathroom in his Virginia high school. The Court sent the case back to the U.S. Circuit Court of Appeals, instructing it to reconsider its April 19, 2016 decision, which relied on Obama-era guidance from the U.S. Department of Education. That guidance had concluded that schools “generally must treat transgender students consistent with their gender identity,” including access to bathrooms corresponding to students’ gender identities.

However, a Trump administration Dear Colleague Letter issued on Feb. 22, 2017, rescinded that earlier guidance, stating that the Departments of Education and Justice would “further and more completely consider the legal issues involved.” It also stated “the withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

What’s Next?

The 4th Circuit Court of Appeals will revisit the case, analyzing the legal questions involved in light of the new administration’s guidance. It is likely that the new outcome will be appealed to the Supreme Court.

What Does This Mean for Schools?

It means the legal landscape is still uncertain in some ways. There is conflicting case law all over the country, with some courts ruling that civil rights laws prohibiting discrimination on the basis of sex apply to situations in which transgender students seek access to bathrooms corresponding with their gender identity. There are also cases in which courts have upheld school district policies restricting bathroom access. We do not know how the Supreme Court will ultimately rule on this, and in the meantime, we do not know how the U.S. Department of Education’s Office of Civil Rights will investigate and adjudicate claims of sex discrimination.

As a result, there is no legal precedent that dictates how school districts must handle these matters.

However, it is important to note that the latest Dear Colleague letter emphasizes that students, including LGBT students, have protection from discrimination, bullying and harassment.

What Should Districts do Absent Legal Precedent?

Have a plan in place for what to do if a transgender student asks the school district for accommodation. In general, districts are more successful at handling student civil rights issues when administrators have taken time to develop a plan ahead of time. The Michigan Department of Education provided guidance last year, which can help schools map out a plan. Depending on the social climate of your district, it may make sense to adopt board policies that mirror the MDE guidance. In other districts, such a move could spark controversy and upheaval. 

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