As I’ve been saying, the most damaging thing the Trump administration can do against civil rights is to merely not fight for them.
The Supreme Court today vacated the Fourth Circuit’s ruling in the Gloucester County School Board v. G.G. That’s the Gavin Grimm case. Relying on guidance from the Obama administration, the Fourth Circuit had ruled that transgender teen Grimm could use whatever bathroom he wanted to.
The issue touched off a firestorm. Gloucester was set to be the most important civil rights case since Obergefell.
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But then Donald Trump won. Then Trump surrounded himself with a bunch of people who are transphobic (transgender-phobic, not to be confused with their transparency-phobia, or homophobia, or Islamophobia, never forget that the Trump administration is staffed by cowards who are afraid of nearly everything). Trump rescinded the bathroom guidance.
Both the school board in Gloucester AND Grimm’s attorneys urged the Supreme Court to move the case forward. The administration might be cowardly, but Grimm isn’t and Gloucester wants clarity. However, the Supreme Court was in a tough spot.
The case is kinda moot. Moot-ish. There are still issues in play for Grimm. Grimm just wants to pee where it makes sense to him, Gloucester wants him to pee where it makes sense to them, whether or not kids have the right to pee where they want or where their birth certificate mandates is a live constitutional issue. But the Fourth Circuit relied on the Obama administration guidance when deciding the case. That guidance is no longer relevant. It makes sense to vacate the ruling and have the Fourth Circuit look at it again.
It makes sense as a matter of procedure, in that grudging way procedure often makes sense. But it’s damn frustrating. We’re obviously never going to “agree” on this, we need to know whether transgender individuals have a constitutional right to pee where they want, or if the state can discriminate against them based on their sex at birth (you see what I did there)?
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We’ll get there eventually. In the meantime, our children can pee in the bathroom that makes the most sense to… state officials?
Supreme Court sends Virginia transgender case back to lower court [Washington Post]
Earlier: DOJ Scales Back On Transgender Defense, In Sign Of Things To Come
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]. He will resist.