On March 6, 2017, the U.S. Supreme Court remanded a case involving a transgender high school student back to the Fourth Circuit Court of Appeals.  The case, Gloucester County School Board, Petitioner v.  G. G., By His Next Friend and Mother, Deirdre Grimm, focuses on the right of a transgender boy, Gavin Grimm, to use the bathroom that corresponds with his gender identity at his public high school.  Grimm, who was born a girl, used the boys’ restrooms with the approval of school administration until the Gloucester County School Board enacted a policy that required all students to use the bathroom that corresponded with their gender assigned at birth.

Grimm filed suit, alleging that the school board’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.  The lower court dismissed Grimm’s Title IX claim.   Following an appeal, the Fourth Circuit reversed, finding that the lower court did not accord the appropriate deference to the Department of Education’s interpretation of Title IX, which requires schools to treat transgender students consistent with their gender identity.

Less than two weeks ago, the Trump Administration announced a sharp change in policy through a jointly-issued Dear Colleague Letter from the Department of Education and Department of Justice.  The Dear Colleague Letter, dated February 22, 2017, withdrew two guidance documents issued by the Obama Administration that included gender identity within the protections of Title IX.  According to the letter, these “guidance documents do not … contain extensive legal analysis or explain how the position [on access to facilities based on gender identity] is consistent with the express language of Title IX, nor did they undergo any formal public process.”

Fearing that the Supreme Court might decide not to hear the Grimm case since the Fourth Circuit’s decision was based on the Obama Administration’s interpretation of Title IX, both sides asked the Court to continue with the oral arguments that were scheduled for later this month.   However, the Supreme Court cancelled the arguments and vacated the Fourth Circuit’s decision.  In its order, the Court instructed the Fourth Circuit to reconsider the case “in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”  The case is not expected to make it back to the Supreme Court before the end of the term.