In a development that could worry LGBT legal activists, the U.S. Supreme Court on Friday (October 28) announced that it would hear an appeal that challenges a lower court decision in favor of a transgender student who was denied access to a school bathroom consistent with his gender identity.

The case, Gloucester v. Grimm, asks the court to decide the validity of a U.S. Department of Education interpretation of a federal law prohibiting discrimination based on sex in education. The Department says the law also prohibits discrimination based on gender identity.

The case comes to the high court from the 4th Circuit U.S. Court of Appeals which had ruled in April that Title IX of the federal Education Amendments Act of 1972 –which prohibits discrimination based on sex by federally funded educational institutions— also prohibits discrimination based on gender identity.

The ACLU, which represents the transgender high school student in the case, put a positive spin on Friday’s announcement, saying it would give the group an opportunity to “tell the Supreme Court who Gavin and transgender kids are throughout the country.”

Gavin Grimm is a senior at a public high school in Gloucester, Virginia. Although identified as female at birth, he has felt since age 6 that he’s a male. A psychologist diagnosed Grimm with gender dysphoria, a condition in which a person strongly identifies as a gender different from his or her physical gender attributes. His parents helped him change his name, secure treatment to transition to a male identity, and inform and seek help from school officials. Grimm sought use of the boys’ restroom because he said girls reacted negatively to his presence in the girls’ restrooms because they perceive him to be a boy.

ACLU senior staff attorney Josh Block said the school’s refusal to let Grimm use the boys’ restroom is “not only humiliating but also affects his education and his ability to participate in school life.”

In accepting Gloucester, the Supreme Court said it would address only two of three questions that the school district attorneys posed: First, they ask whether the courts should give “deference” to the Department of Education’s interpretation of the law, given that it came in an “unpublished agency letter.” And, second, they ask whether legal effect should be given to the Department’s interpretation of Title IX.

In its petition to the Supreme Court, the school district’s primary argument was that, when Congress passed Title IX, it intended the word “sex” to mean “nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” It says the U.S. Department of Education’s interpretation of “sex” to include “gender identity” amounts to creating new law.

Block says the high court won’t necessarily reach the question of whether “sex” should include “gender identity.” It could stick to a very narrow ruling on whether the courts should defer to the Department’s interpretation of “sex.”

“The argument the other side is making,” said Block, “…is the unambiguous meaning is biological sex. In order to apply deference [to DOE], the court must first determine the regulation is ambiguous and then that [the Department’s interpretation was] a reasonable construction.”
“The court could decide in a broad or narrow way but, at a minimum, it would reject the idea that one and only one meaning of the word sex is chromosomes or reproductive anatomy.”

Block said the court’s eventual ruling could have far reaching applications –affecting not only the sex discrimination language in Title IX affecting education but also in Title VII of the Civil Rights Act, affecting employment.

“It potentially has implications for any statutes protecting on the basis of sex,” said Block. “It could decide on narrower grounds, but since 2000, the [lower] courts have kept up a steady drumbeat that discrimination against transgender people is discrimination based on sex. And this might be the opportunity for the U.S. Supreme Court to join that chorus.”

The high court does not typically jump at chances to make sweeping decisions and, to some extent, it is unusual that the court took this case because the ruling under appeal was a preliminary one, not one on the merits. The 4^th circuit’s ruling was issued in response to a preliminary motion in Grimm’s lawsuit. The preliminary motion requested that Grimm be able to use his public high school’s boys’ restrooms until his overall lawsuit –arguing that Title IX does cover gender identity– can be resolved. The 4^th circuit’s decision sent the case back to the district court with instructions to reconsider the preliminary injunction in light of the appeals court’s ruling that Title IX prohibits discrimination based on gender identity.

The Gloucester school district appealed that preliminary ruling to the Supreme Court and, in August, the Supreme Court agreed to stay the 4th Circuit’s decision until it –the Supreme Court— could decide whether to take the case for review. Attorneys for Grimm argued against the court taking the appeal, saying that this case was “the wrong case at the wrong time” and noting that there are no conflicts –yet- among the various federal appeals courts.

Grimm said in a telephone press call that he was disappointed that the Supreme Court accepted the appeal, “but I’m not afraid and not discouraged.”

While he said he feels like he has a “target on my back” and things are “very difficult and stressful,” he hopes his case means that “no other transgender student will have to go through what I’ve gone through.”