The Supreme Court has vacated a Fourth Circuit Court of Appeals ruling in favor of Gavin Grimm, a Virginia transgender student who sought to use the boys room at school despite being a female biologically. The Court sent the case back to the Fourth Circuit for reconsideration in light of the Trump administration’s revocation of Obama-era guidance that supported Grimm’s claim under Title IX.
The Fourth Circuit had relied heavily on the Obama-era guidance document in reaching its decision in Grimm’s favor. Thus, it makes sense for the Supreme Court to remand the case to see whether the Fourth Circuit still agrees with Grimm’s claim in the absence of the federal government’s guidance.
Transgender advocacy groups expressed disappointment with the remand. They probably hoped to have the Supreme Court as currently constituted decide the case, as it agreed to do last year before the Obama-era guidance was revoked. The worst they could expect from that Court would be a 4-4 decision which would let the Fourth Circuit’s ruling stand. Alternatively, they hoped at least to have a Court with Justice Kennedy still on it decide the case.
Now, they fear the worst — an eventual ruling by a Court with five conservative Justices — two Trump selections plus Justices Thomas and Alito and the Chief Justice.
The school board also had asked the Supreme Court to decide the case. It may have been confident that Neil Gorsuch will be confirmed quickly and that Justice Kennedy would provide a fifth vote in the board’s favor, especially now that federal government guidance no longer supports Grimm. The school board may also simply want a quick resolution of the dispute.
But the fact that both parties wanted a decision did not require the Court to render one. The Court sensibly preferred giving the Fourth Circuit the opportunity to reconsider the matter in light of a key new development — the revocation of the federal guidance upon which it had relied.
Where do things stand now for the parties in the case? According to Amy Howe of ScotusBlog, the school is not required to provide Grimm access to the boys’ restroom:
Although [Grimm] had 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 over the summer put the injunction on hold. . .[T]oday’s ruling means that the school need not provide [Grimm] 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.
There’s no guarantee that the issue will ever reach the Supreme Court again, but it probably will. Whichever way the Fourth Circuit goes on remand, the losing party might well seek Supreme Court review. And there’s a good chance the Circuits eventually will split on this contentious issue, making Supreme Court intervention all the more likely somewhere down the road.