by Yuvraj Joshi, Fair Courts Project Fellow at Lambda Legal
The Supreme Court announced on Monday that it would no longer hear a case brought by Gavin Grimm, a transgender high school student whose school has refused to let him use the boys’ bathroom.
Gavin’s fight is not over, only taking a legal detour. The Supreme Court has sent the case back to the Fourth Circuit for further review in light of the new guidance from the Trump administration, which rescinded the Obama administration’s guidance that federal laws require schools to allow transgender students to use bathrooms that match their gender identities.
Should Gavin Grimm, or any of the other transgender students with cases pending on this issue, wind up in the nation’s highest court, they could face a man who has already ruled twice against transgender rights: Neil Gorsuch, Trump’s nominee to the Supreme Court.
Judge Gorsuch’s most recent rejection of transgender rights came in 2015, by which time several federal courts had already issued decisions supporting coverage for discrimination against transgender individuals as sex discrimination.
Judge Gorsuch joined an opinion of the Tenth Circuit rejecting arguments made by Jeanne Marie Druley, a transgender woman who was incarcerated, that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing. The Tenth Circuit opinion Judge Gorsuch joined stated:
“To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims. . . . Ms. Druley did not allege any facts suggesting the ODOC defendants' decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose. Thus, she has not demonstrated a likelihood of success on her Equal Protection claims.”