On Friday, just one day after taking office, Attorney General Sessions canceled the pending hearing which would have decided whether to uphold an injunction issued by Texas Judge Reed O’Connor(R) in August that suspended transgender protections in schools. The original guidance issued by the Obama Administration said that transgender students were protected from discrimination under Title IX, and that they had the right to use the restroom and locker room facilities that matched their gender identity. The move came just one week after the Trump White House signaled they would protect the LGBT community when President Trump extended an executive order that protected transgender federal employees.
“WHILE THE IMMEDIATE IMPACT OF THIS INITIAL LEGAL MANEUVER IS LIMITED, IT IS A FRIGHTENING SIGN THAT THE TRUMP ADMINISTRATION IS READY TO DISCARD ITS OBLIGATION TO PROTECT ALL STUDENTS.” – MARA KEISLING
The move furthers speculation that the members of Trump’s cabinet are not on the same page when it comes to LGBT issues. Many LGBT rights organizations view the filing as a direct attack against the transgender community. Mara Keisling, the Executive Director of the National Center for Transgender Equality, called the filing a “callous attack” against transgender students. “While the immediate impact of this initial legal maneuver is limited, it is a frightening sign that the Trump administration is ready to discard its obligation to protect all students,” Keisling told NBC News. In the filing on Friday, both the Justice Department and the defendants (the State of Texas) stated they were “currently considering how best to proceed in this appeal.”
The move indicates one of two scenarios, the first one being that Attorney General Jeff Sessions is living up to the speculation that he will make the Justice Department anti-LGBT as many have feared. The other scenario is that they are kicking the issue down the road because of the pending Gavin Grimm case that will be heard on March 28th by the Supreme Court.
The case of Gavin Grimm could decide once and for all if transgender students are protected under title IX. Grimm, a transgender male High School student in Virginia’s Gloucester County, was forced by his school to either use the restrooms that matched the gender he was assigned at birth or to otherwise use single stall unisex restrooms. He was not allowed to use the boy’s room that matched his gender identity. The school district is arguing that gender identity is not protected under Title IX, which states that students cannot be discriminated against on the basis of sex. Grimm, backed by the ACLU, is arguing that gender identity is covered under Title IX.
There is one glaring issue with the Supreme Court case however, there are currently only eight Justices serving on the highest court, and there is a likely probability that they may be split 4-4 in the decision. Last year, Republican Senators blocked President Obama’s nominee, Merrick Garland, from even having a hearing. This year it appears Democratic Senators are poised to return the favor by holding up President Trump’s pick, Neil Gorsuch. This means the most likely scenario will be eight justices on March 28th. If the decision ends up as a 4-4 split, Grimm will win the case because a ruling in his favor by the 4th Circuit will be upheld. Though Grimm then would be allowed to use the facilities that match his gender identity, the outcome of the case would not affect any future transgender rights cases because of the split decision. In the end the outcome of the case could ultimately decide the future for transgender students, but it also may not. We can only wait and see. All eyes will be on the Supreme Court on March 28th.