Maybe Not So Grimm: Avoiding a Bowers v. Hardwick Moment in Trans Rights

By Diane Klein

Monday's announcement that the Supreme Court would not hear G.G. v. Gloucester County (the "Gavin Grimm" case) on March 28, 2017 as scheduled, sent a wave of disappointment through much of the left-leaning legal community.  Gavin Grimm, the now-17 year old plaintiff who had seemed well on his way to becoming a bona fide celebrity -- he received a "shout out" from Laverne Cox at the Grammys! -- now may end up a footnote in trans history.  But perhaps the news is not all bad.

The disappointment is understandable.  The Gavin Grimm case, concerning the right of a trans student to use the bathroom he preferred (the boys' bathroom at his high school), would have been the first trans rights case before the high court.  It would have forced the Supreme Court to reckon with the reality of trans existence. It was an opportunity for some of the most skillful trans advocates and their allies to explain to all of the United States why transgender bathroom access is not (just) about bathrooms; why opposition to this access is not about “women and children,” not about “safety” or “privacy” or “sexual predators” - but is instead an attempt to banish trans people from public life and our shared public spaces, in violation of deeply-held American values.  Just as segregated water fountains were never (just) about getting a drink, equal access to bathroom facilities is not just about relieving oneself.  Bathroom access for trans people is about equality, liberty, and civic participation in the most fundamental ways.  This case might have vindicated those rights. It might have been a trans Brown v. Board of Education.
But the case also carried a risk - a risk that the Supreme Court would not see it as trans advocates hoped, and would instead deal a blow to trans rights that might take a generation to undo.  It might, in short, have been Bowers v. Hardwick all over again.  

Bowers, for those who might not recall it, was the 1986 Supreme Court case that upheld Georgia's criminal sodomy law.  By the 1980s, many states had abolished such laws, and in others they had fallen into desuetude. It might have appeared that the time was ripe for a challenge.  But the AIDS epidemic was in full swing, there were few openly gay people in public life, and instead of broadening rights of sexual privacy and intimate association, the outcome was decided by a majority who searched the Constitution in vain for “a fundamental right to engage in homosexual sodomy,” and notoriously dismissed any claim of “a right to engage in such conduct” as, “at best, facetious.”

It was seventeen long years from Bowers to 2003's Lawrence v. Texas, which finally struck down anti-sodomy laws (as applied to adult consensual non-commercial private conduct), and paved the way to U.S. v. Windsor (2013) and Obergefell v. Hodges (2015), the cases that eliminated the “Defense of Marriage Act,” and vindicated the right of all adult Americans not just to have sex with, but also to marry, the person of their choice.  

A great deal happened in those years between Bowers and Lawrence, including widespread enactment of state-level anti-discrimination protections for LGBT persons, and the birth of the modern same-sex marriage movement.  The years from Lawrence to Obergefell brought gay people and gay rights even further into the mainstream, and support for LGBT rights and same-sex marriage has had stable majority support overall for some years.  

But there were setbacks too.  On the one hand, 1996 brought a victory in  Romer v. Evans, which used rational basis scrutiny to strike down Colorado’s Amendment 2, which purported to block the enactment of any law protecting the rights of gay people.  But that same year brought the Defense of Marriage Act, a reactionary federal response to the burgeoning same-sex marriage movement, and a historic departure from full faith and credit that not only denied federal recognition of same-sex marriage, but created a crazy-quilt of inconsistent state laws.

That patchwork proved ultimately unsustainable and incoherent (Windsor was a federal estate tax case, concerning a New York couple married in Ontario, Canada, whose marriage was recognized by the State of New York but not the United States or the Internal Revenue Service).  So many different legal rights, duties, and benefits depend on marital status that to treat couples as married in one place and not in another (or married at the state level, but not the federal one) became unmanageable.  Justice and practicality both demanded a uniform federal approach, and it came.  But it took almost 30 years.

As bad as inconsistent state laws were for gay couples (who were at least adults theoretically able to change domicile), things are in some ways even worse for trans students.  A child who cannot use the bathroom associated with the gender with which they identify faces three choices, all of them bad: to present in one gender and use the bathroom associated with the sex assigned at birth (based on external genitalia), thereby outing themselves, suffering discomfort and possibly eliciting violence from others; to live in “stealth,” using the facilities associated with their preferred/presenting gender, in constant fear of being outed, with consequences again ranging from embarrassment to violence; or not to outwardly transition at all during their childhood, a medically and psychologically damaging course of action associated with tremendous risk of suicide and self-harm.  (Today, young transitioners have available puberty-blocking hormone treatments, which (reversibly) prevent puberty in the birth sex, making a complete medical and social transition in adulthood much easier.  But precisely because puberty does not occur, using birth-sex facilities becomes increasingly visibly awkward.)

A trans child forced to move from a state in which they are protected and respected as students, to a state in which they are not - at age 5, 10, or 15 - faces a major trauma, to which no loving and responsible parent would willingly subject their child.  But if a move is a matter of economic or personal necessity for the family - perhaps the parent works for a company that transfers them, in an industry with few options, or the parent must return home to care for their own aging or disabled family member - what choice would they have?

Imagine explaining to a child who has lived as a girl since preschool, that she must use the boys' bathroom (because she was born with a penis); or lie and hide from her teachers and friends; or de-transition (or postpone transitioning) -- all to accommodate the bigotry, fear, and ignorance of others.

And without in any way minimizing the injustice and indignity suffered by couples who had to wait many years to marry (or for full recognition of their marriage), a child has only one chance at elementary school, middle school, and high school - the deprivation of full educational opportunity in those years can never be made good.

For all these reasons, the need for a uniform federal approach is clear; as Michael Dorf has argued here, states’ rights and “go slow” approaches are a poor fit for issues like this.  The problem is that a result as favorable and sweeping as Lawrence or Obergefell in trans rights’ first at-bat before the high court, seems unlikely.

This is not because the evidence is not on the side of trans rights activists.  Numerous states and school districts have implemented policies like those contained in the Title IX “Dear Colleague” letter without incident; evidence of trans persons (or those posing as trans persons) posing threats to public safety in bathrooms or locker rooms is non-existent.  But there was no evidence of harm from consensual private adult sodomy at the time of Bowers.

Nor is it because the legal arguments are weak.  It’s true that the centerpiece of the Fourth Circuit’s reversal of the district court was “Auer deference,” a doctrine counseling that the judiciary accept most agency interpretations of their own regulations.  As the Fourth Circuit put it, “Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.’s Title IX claim.”  Had Clinton been elected, and a Clinton DOJ/DOE been installed, it’s safe to say the government would have vigorously defended both the “Dear Colleague” letter, and the doctrine of Auer deference upon which the Fourth Circuit relied.  But even though that guidance was withdrawn on February 22, 2017, arguably mooting the Auer issue, both sides in Grimm wished to proceed on the pure statutory Title IX claim.  

As Michael Dorf and others have argued in their amicus brief, “consign[ing] transgender students to restrooms on the basis of their external reproductive organs” discriminates impermissibly against them, “on the basis of sex,” by imposing serious harms not counterbalanced by the achievement of any important educational objectives.  This argument is surely correct. But will the Supreme Court agree?  I am less confident.

We may have reached what Time magazine’s 2014 cover story proclaimed as “The Transgender Tipping Point.”  But “America’s next civil rights frontier” (as Time described it) is far from settled territory in the current culture war.  The very Title IX “Dear Colleague” letter requiring that trans students be permitted to use bathrooms consistent with their gender identity was, after all, slapped with an injunction sought by a dozen states - and that was well before Donald Trump’s election.  At the state level, “bathroom bills” as restrictive as North Carolina’s notorious HB2 continue to be proposed; one such bill advanced to the Texas Senate on Wednesday, March 8, 2017.  The ignorance and fear surrounding trans people - though baseless - is still all too real.

What might a Bowers-like decision in Grimm have looked like?  It might, first, have solidified the identification of “sex” for Title IX (and possibly even Title VII) purposes with external genitalia. It might, in permitting discrimination against trans students, have reinscribed stereotypes about trans people as sexual deviants or predators; it might have denied the reality of their lived gender experience (as "at best, facetious"), subordinating it to their genital status.  It might have held that imposing conditions on bathroom use that drove those students out of school (or worse) was nevertheless “rational.”  It might have undermined the ability of school districts wishing to protect trans students from bigotry to do so, and encouraged those states and school districts who had protected trans students’ rights only under federal mandate to roll those protections back.  And just as gay Americans spent the years from Bowers to Lawrence under the shadow of a Supreme Court prepared to countenance the criminalization of their most intimate lives, a generation or more of trans students might have grown up knowing their education and life prospects mattered less to the Supreme Court than the ignorant bigotry of those who would deny their existence.

So the case is now back at the Fourth Circuit, which staked out a modest judicial role the last time around, acknowledging that “Not only may a subsequent administration choose to implement a different policy, but Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the Department regarding the use of restrooms by transgender students.” The Fourth Circuit also expressly refused to reach the Equal Protection argument until the district court considered it.  By the time that happens, of course, the Betsy DeVos DOE may have issued new guidance; the Republican Congress may amend Title IX; and nominee Judge Neil Gorsuch (a judge generally hostile to deference doctrines) may have been confirmed as the ninth Supreme Court justice.  Or things may have taken turns decisively for the better. And at least where the rights of trans people are concerned, we may have inched closer to a world more like Lawrence than Bowers.