In response to the Trump Administration’s decision to withdraw guidance on the scope of Title IX’s protections for transgender students, the Supreme Court asked the parties to the Gavin Grimm case their views on how that case should proceed. The Supreme Court can and should still decide the Grimm case and settle definitively that federal prohibitions on sex discrimination include discrimination against transgender people. There are both human and legal reasons for the Court to move forward.
Most importantly, from a human perspective, a decision that Title IX protects transgender students would safeguard hundreds of thousands of transgender youth—youth like Grimm. According to recent estimates by the Williams Institute, 0.7 percent of youth (ages 13 to 17), or about 150,00 kids in that age group, would identify as transgender. (This is in addition to children below the age of 13, and the estimated 206,000 people aged 18 to 24 who, if they’re in college, are also protected by Title IX). Every day that schools are permitted to deny transgender students’ lived reality and bar them from fully participating in public life by, for example, excluding them from restrooms that correspond to their gender identity inflicts palpable harm on these children.
The harm of such exclusion is excruciatingly real, and well documented. Over three-quarters of students who were out or perceived as transgender during their K-12 years experienced mistreatment, including verbal harassment, physical assault, and sexual assault, as documented in the 2015 U.S. Transgender Survey. And transgender students who do not finish high school are disproportionately likely to attempt suicide, even as compared to the already high rate of attempted suicide among transgender people. Tragically, more than a third of transgender people who have attempted suicide reported that their first attempt was at the age of 13 or younger. To be clear, there is no suggestion that being transgender makes someone inherently more prone to mental illness—rather, socially structured, negative life events in reaction to someone’s transgender status can negatively impact that person’s mental health outcomes. All of which is to say, providing a supportive (or at the very least non-hostile) environment to transgender youth is critical to their survival.
When a school excludes a transgender student from the bathroom corresponding to the student’s gender identity, the school directly harms the student, but also sends a message to other students that it is okay to treat trans people differently, potentially leading to downstream harassment from other students. Delaying a decision on the ultimate question of whether Title IX includes protections for transgender students would continue to subject the hundreds of thousands of transgender students to stigmatization, harassment, and violence.
But the harm of that message is not limited to transgender students. It cements in the mind of any child who is different (that is, every child!), that difference is to be feared and shunned, rather than celebrated. It creates and perpetuates an environment of intolerance harming all children. Everyday over 50 million students attend public schools—what could be more pressing than helping ensure that educational environments are tolerant and welcoming, necessary conditions for learning and growth?
In addition to the human costs associated with a delayed ruling, the legal landscape is sufficiently developed to warrant intervention by the Supreme Court. Indeed, when it agreed to hear the Grimm case, the Court certified two distinct questions. The first was whether the Obama Administration’s guidance interpreting the Title IX regulations was entitled to deference. That question is off the table now that the Trump Administration has rescinded the guidance. But the second and ultimate question is whether, “with or without deference,” the interpretation of Title IX as protecting transgender students from sex discrimination should nevertheless be given effect. That question remains before the Court.
And the Court need not make any great leaps to reach a decision on that question. The Court has already ruled that federal prohibitions on sex discrimination include discrimination based on sex-stereotyping (treating people differently based on their failure to conform to majoritarian notions of how a person of a particular sex should act) and that, in the words of Justice Antonin Scalia, the statutory prohibitions on sex discrimination “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” including same-sex harassment.
Moreover, the issue of whether federal prohibitions on sex discrimination extend to transgender people is not some new, unexplored issue (and certainly was not thrust into the spotlight by the Obama Administration guidance, as some have suggested). Courts have been addressing whether transgender people are protected under federal anti-discrimination statutes for over a decade. And many of those courts have reached the unremarkable conclusion that, yes, transgender people are people and therefore protected against mistreatment based on their sex. While the Supreme Court should reach the same conclusion based on its own precedent and that of several circuit courts, to the extent lower courts have disagreed, that disagreement militates in favor of resolving the issue now.
And while the Fourth Circuit’s decision in favor of Grimm relied on deference to the Obama Administration’s interpretation, and therefore did not need to reach the question of how to interpret Title IX absent the guidance, the ultimate issue of how to interpret the statute will be fully briefed by the parties for the Supreme Court. Therefore, it is within the Court’s discretion to decide the issue even though the lower court in this instance did not reach it.
Nor is there reason for the Supreme Court to stay out of the fray in the name of purported state rights, a false narrative that has surfaced in recent days. As Grimm himself and others explained powerfully this week, federal civil rights laws are designed to protect individuals against those (including states and their school district subdivisions) who would infringe on individual rights. It is the province of the federal government and the federal courts to police and protect those rights.
Finally, the Court may also be reluctant to decide such a significant and important case in the absence of a full bench. But if the Court thinks that the case is, in fact, important, then it must decide the case. According to the Court’s rules for granting review, the presence of important questions of federal law that have not been settled by the Supreme Court is a factor in favor of Supreme Court evaluation. The Court has been going about its business with only eight justices for over a year—it should continue to do so, particularly when the stakes are so high for so many.