Gloucester County Sch. Bd. v. G. G. ex rel. Grimm, 16-273, 2017 WL 855755 (U.S. Mar. 6, 2017)

Despite the high-profile nature of the case, the Supreme Court sent the transgender bathroom case back to the U.S. Court of Appeals for the 4th Circuit for reconsideration. This was done in light of a document from the U.S. Departments of Education and Justice which revoked the Obama-era guidance on which a lower court had relied to rule in the teen’s favor[1].

The case involved G.G., a student born female who identifies as male, and his lawsuit for the right to use the men’s bathroom at his high school. G.G. claimed that the school’s refusal violated federal anti-discrimination law and the U.S. Constitution’s guarantee of equal protections. The 4th Circuit agreed, relying heavily upon a 2015 opinion letter from the Department of Education’s Office of Civil Rights which stated that if schools choose to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.” See G.G. ex rel. Grimm v. Gloucester County Sch. Bd., 822 F.3d 709, 715 (4th Cir. 2016), cert. granted in part, 137 S. Ct. 369, 196 L. Ed. 2d 283 (2016), vacated and remanded, 16-273, 2017 WL 855755 (U.S. Mar. 6, 2017). Even after the Trump administration revoked that guidance, both G.G. and the Gloucester County School Board asked the Supreme Court to move forward with the case, hoping for some resolution. They argued that while the guidance relied upon by the appellate court may be moot, the second claim – equal protection – is not. Nevertheless, the Supreme Court decided to send the case back to the 4th Circuit.

Even though G.G. prevailed in the 4th Circuit and a federal district court had issued an injunction that would allow him to use the boys’ bathrooms until the case could be resolved on the merits, the Supreme Court had previously put the injunction on hold. And this one-sentence ruling means that the school need not provide G.G. access to the boys’ bathroom. The court of appeals’ decision has been vacated by the Supreme Court, so there is no ruling on which the district court would base an injunction. Therefore, G.G., school districts, and others must continue to wait for a definitive answer as to whether Title IX applies to transgender students.

In the interim, it is important to keep in mind that Illinois law prohibits discrimination based on sexual orientation, which includes “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s sex at birth.” 775 ILCS 5/1-103.