Trans People at the Supreme Court — Now What?
The Supreme Court will decide a major trans rights case by June
Yesterday the Supreme Court announced that it will review Gavin Grimm’s case involving his school’s policy to bar him from the boys’ restroom because he is transgender. This means that the nation’s high Court will hear argument about the rights of transgender people under federal law during the Court’s February sitting beginning February 21, 2017 and almost definitely issue a major ruling about the rights of transgender people before the term ends in June, 2017. I wanted to provide some context for what this means, what people can do and how to support trans people for the next eight months as this case takes center stage.
Who is Gavin?
Gavin is a seventeen year-old boy and a senior in high school in Gloucester County, Virginia. He is poised and brilliant and an inspiration to me. When Gavin came out as transgender, he informed the school that he is a boy and consistent with his identity and the recommendations of his medical providers would need to be treated as a boy for all purposes. For almost two months Gavin used the boys’ restroom like the rest of his male peers without incident until adults in the community began to complain about Gavin’s presence and brought their complaints to the county School Board. The Board voted 6–1 to bar Gavin from the restroom for boys solely because he is transgender. Members of the community called him a “freak” and compared him to someone believing they are a dog and wanting to pee on fire hydrants. In the face of hostility and targeted efforts to humiliate him, Gavin stood up for himself and other transgender students.
Barred from the restroom, in June of 2015 Gavin filed a lawsuit in federal court in Virginia arguing that the School Board’s policy violated his rights to be free from sex discrimination under Title IX and the United States Constitution. Though the district court denied his request for relief, he received a landmark decision from the United States Court of Appeal for the Fourth Circuit, the federal appellate court that heard his appeal, in his favor. Shortly after Gavin’s victory at the Fourth Circuit, an order was put in place that would finally allow him to use the boys’ restroom when he returned to school this fall. Unfortunately, in August, the Supreme Court put a stop to that order thereby preventing Gavin from beginning his senior year of school free from government-sanctioned discrimination.
What does the grant of certiorari mean?
The Supreme Court of the United States does not hear every case that is appealed to them. Instead, a party can petition the court to review the case — this is called a petition for certiorari. Having lost in the appeals court, the Gloucester County School Board petitioned the Supreme Court to review Gavin’s win. Gavin opposed. Yesterday, October 28, 2016, the Court announced that it will review Gavin’s win. Practically speaking this means that Gavin will never get to use the boys’ restroom as he will graduate before the Court ultimately decides his case. It also means that the Court could overturn the favorable decision from the lower court.
The two questions that the Court will be reviewing are:
The first question (number 2 above) is about whether the lower court properly deferred to the United States Department of Education’s interpretation of the meaning of Title IX, this is largely a question of administrative law and the types of agency action that should receive deference from the courts, and the second question (number 3 above) is about the substance of the meaning of Title IX and whether its prohibition on sex discrimination includes transgender individuals.
The resolution of these questions will impact the protections of transgender individuals in schools and other settings across the country. This truly is a conversation about whether transgender people can participate in public life. The stakes are high and our resolve to fight is stronger than ever.
What Can You Do?
This case is about Gavin and his basic request to be treated like his peers. But it is also about all of us — transgender and non-transgender — and our ability to support and fight for people who are different from us. It is about more than restrooms. It is about whether transgender people can be a part of public life. It is about whether basic protections under federal law include transgender people. It is about young people who have to take on way more than they should have to.
Join me in sending love and support to Gavin. You can use the hashtag #StandWithGavin to share messages of support for him and mobilize people to keep fighting for trans justice.
When people try to talk about trans rights as a “clash of values” or if they suggest that the existence of trans people threatens the privacy or safety of others, explain that this framing has been deliberately developed by anti-LGBT groups and is completely false. You can share this article and this article to help explain the history of this false dichotomy and expose the faulty assumptions underlying those arguments.
If friends, family, colleagues or strangers talk to you about how it is wrong to let people with “male bodies” into female spaces, explain to them that our bodies are far more complex than that and there is no such thing as a coherent “male body.” We have bodies and body parts but our body parts don’t have a sex. Indeed, as I have explained elsewhere:
“In addition to being factually inaccurate, it is dangerous to refer to women who are trans as having “male bodies” and men who are trans as having “female bodies.”
Much of the violence perpetrated against transgender people by strangers occurs when a perpetrator learns that someone is transgender. It is often the perceived betrayal of a person’s “true” identity that leads to aggression and violence. When Islan Nettles, a black transgender woman, was violently beaten and murdered on the street in New York City, her confessed killer explained that he went into a rage when his friends said to him, “That’s a guy.” Of course, she wasn’t a “guy”; she was a woman. It is only because we are taught to believe that a person’s true sex is found on the body that transgender people are seen as perpetrating a fraud. That a jawline, facial hair, voice tone, or genital shape will expose someone’s real sex. And that idea of “real” sex comes from the narratives we tell about male bodies and female bodies.”
Keep sharing stories of trans people — your own stories or others. Share videos that talk about the long history of criminalizing and brutalizing Black trans women and femmes. Share videos that show beautiful trans young people and their families. Share statistics about violence and discrimination and stories of resilience and beauty.
If your family members like beautiful coffee table books, buy Relationship and put it on their table.
If your family members have financial resources, donate to projects like Happy Birthday, Marsha that tell trans histories.
Learn about Miss Major Griffin-Gracy and the long histories of trans caretaking.
Be thoughtful and reflective and imagine what it takes to be seventeen years old and have your basic request to pee become the subject of a national conversation at the Supreme Court.
It is painful for trans people that this fight has to happen and that our existence is questioned and debated. But as much as there is pain in these conversations, there is so much love for each other and our community. We will fight for each other as we always have and I trust that so many others will join us.