By Dorian Grayson
Gavin Grimm is a high school boy not allowed to go to the boy’s bathroom. He took the matter to federal court, and it worked its way up through appeals to the Supreme Court.
Like other issues too polarized for state or federal congress — gay marriage, abortion, etc. — it was expected that the Supreme Court would finalize the country’s decision on whether or not binary transgender people can use the bathroom that matches their gender.
The Supreme Court has opted not to take the case. Notably, this is after they agreed to hear the case in October 2016. They were supposed to be hearing arguments this month.
This denial comes after Betsy Devos’s Department of Education has retracted the stance from the previous administration that advised schools to let trans kids use the bathroom that matches their gender identity rather than the gender assigned to them at birth.
It is unknown which way the court would have gone. Justice Kennedy would likely have been the deciding vote and has been largely supportive of LGBTQ+ issues in the past.
The case will return to the Fourth U.S. Circuit Court of Appeals in Richmond, Virginia. It ruled in favor of Grimm in accordance with the directive from the Department of Education. They will have to reevaluate the case within the new administration.
The Supreme Court has never dealt with trans rights before. This case could have set the national conversation in much the same way Obergefell v. Hodges did for gay marriage. After the Supreme Court decision on Obergefell v. Hodges, it became a relatively popular stance among Republican primary candidates to take a more flexible approach to gay marriage.
“Guess what? I just went to a wedding of a friend of mine who happens to be gay. Because somebody doesn’t think the way I do, doesn’t mean I can’t care about them or I can’t love them,” Ohio Governor John Kasich said to applause.
It’s important to note, however, that Kasich was not entirely liberal on the issue.
“I just think marriage is between a man and a woman, but if you want to have a civil union that’s fine with me,” Kasich said on MSNBC.
President Trump was also occasionally vocal about protecting LGBT people during the campaign.
“Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs,” the President tweeted after the Orlando shooting at Pulse.
However, Neil Gorsuch, the president’s nominee for Associate Justice, is conservative. While he has never made a decision on LGBT rights or commented on them, he is likely to follow his conservative stance socially.
This is all to say that it is unlikely that there will be a federal law or decision to give binary trans people the right to use the bathroom that matches their gender identity.
It is up to the states to make choices for public schools. Eight states — including Alabama, Kansas and Illinois — currently have legislation pending that would restrict bathroom access for binary trans kids in public schools. Four other states have bills whose language isn’t specific to public schools.
Regarding our University, it might be tempting to think that because binary trans people can use the bathroom that matches their gender identity on campus, that the University wholly stands for and understands trans rights. However, in most buildings on campus, non-binary trans people are forced to use gendered bathrooms.
Like most civil rights battles, the long-term outcome still looks to be positive. As long as there are activists to fight for trans rights, the bathroom situation can be amicably solved. But, for the time being, it looks like the president’s administration and the federal government in general will neglect to support trans folks.