The Supreme Court was to have heard arguments this month in the case of Gavin Grimm, a transgender student who was prevented from using the boys' bathroom at his Virginia high school. But on Monday the justices returned the case to a lower court after the Trump administration rescinded an Obama administration interpretation of federal civil rights law that had supported Grimm's position.
That was a mistake.
The justices should have heard the case anyway, as both sides of the case had urged. Then it should have ruled that, under Title IX, a federal law that prohibits schools and colleges from engaging in discrimination "on the basis of sex," the school must allow him to use the bathroom that corresponds to his gender identity — even if that identity is different than the one on his birth certificate.
At first glance, the court's decision to back away from the case might seem to make sense. In ruling for Grimm, the U.S. 4th Circuit Court of Appeals had emphasized that it was deferring to the Obama administration's interpretation of both Title IX and a regulation implementing the law that allowed schools to provide for "separate toilet, locker room, and shower facilities on the basis of sex." The problem is that the Obama administration's "guidance" is no longer the official interpretation of the executive branch, having been axed last month by President Trump's Education and Justice departments in a gesture to his social conservative supporters. That means one of the questions the justices were expected to address — whether the courts should defer to such agency interpretations — is no longer raised by Grimm's case.
Yet the justices still could have ruled on whether Title IX itself requires that schools treat transgender students in a manner consistent with their gender identity. In doing so, they also would have been addressing a larger question that applies to other civil rights laws: whether, as lower courts have found, discrimination on the basis of "sex" also includes discrimination on the basis of gender identity.
Their answer should be: Of course it does. And it's irrelevant that members of Congress who voted for Title IX or other civil rights laws didn't have people like Gavin Grimm in mind when they voted to outlaw sex discrimination. Concepts like sex discrimination evolve over time. As the late Justice Antonin Scalia wrote in a 1998 decision involving male-on-male sexual harassment (itself a concept that took time to develop), laws against violations of civil rights "often go beyond the principal evil to cover reasonably comparable evils."
Justice has been delayed for Grimm and other transgender students. We hope it hasn't been denied.