(Photo by Sara D. Davis/Getty Images)
On Friday, the Supreme Court did not weigh in on the Anthony Weiner email controversy. Which means nobody much noticed that they instead decided to dip their toe into the civil rights dispute over transgender access to bathrooms of their choice.
We’re at a point where we require a Supreme Court ruling on this issue. The law is pretty much all over the map. The Department of Education, under the Obama administration, has interpreted Title IX to prohibit discrimination based on sex, and defines “sex” as the gender a person identifies with. Other forces interpret sex to be one’s gender “at birth,” but because no newborn can express their gender preference, that standard reduces to sex being set by one’s genitalia at birth.
A court ordered the Gloucester County, Va., school district to allow 17-year-old Gavin Grimm access to the boys’ restroom. Grimm was born female but identifies as male. In August, Justice Stephen Breyer joined conservative justices to block that ruling by a vote of 5 – 3, “as a courtesy” to the school district while the Supreme Court considered the appeal. It’s great that Justice Breyer was more concerned about being courteous to the school than to the teenager.
Now, the Court has granted cert and will hear the case next year. From the Washington Post:
“We’re prepared to make our case to the court and to make sure the Supreme Court and people in general see Gavin as who he is and see trans kids across the country for who they are,” said Grimm’s attorney, Joshua Block of the American Civil Liberties Union. Grimm “is not trying to dismantle sex-segregated restrooms. He’s just trying to use them.”
The Court has to add some legal clarity to this issue, a 4-4 tie would not get the job done. We need a clear statement from the Court on what gender means, and who gets to decide. Is it the federal government? Is it a constitutional issue? Can reasonable people (and states) disagree as to what constitutes gender discrimination?
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I can’t imagine that the Court would take this case only to punt it. By the time this case is argued next year, I think the Court expects, one way or another, to be operating with nine justices. Whether it’s Judge Merrick Garland or Judge Maryanne Trump Barry or somebody else, the Court thinks it’s going to be operating with a full compliment of jurists.
We need them. Because whatever you think the law should be, we can all agree that the law is confused right now on this issue. Neither Gavin Grimm nor Gloucester County are helped by this uncertainty, nor are thousands of transgender students, nor are countless school districts that just want to do the right thing.
The law is never simple, but we have a system for getting answers to our complicated legal questions. This is the Court’s job: Resolving disputes about the meaning of our laws. The Senate needs to get out of the way and let the Court function properly.
Supreme Court takes up school bathroom rules for transgender students [Washington Post]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. Has considered that the Court could also work if it had seven justices, as opposed to eight, and thinks that might be the Republican plan.