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The Supreme Court’s latest punt has big implications for transgender rights

Vox.com logo Vox.com 3/6/2017 German Lopez
© Provided by Vox.com

The Court won’t hear about trans access to bathrooms — for now.

It could have been the case to decide one of the big remaining battlegrounds for LGBTQ rights.

But on Monday, the US Supreme Court announced it would delay its hearings in Gloucester County School Board v. G.G., pushing the case back down to the Fourth Circuit Court of Appeals. The decision means that the Supreme Court won’t hear — or rule on — a case involving trans rights and nondiscrimination protections for now, leaving trans people across much of the country without explicit legal protections from discrimination for the time being.

The case focused on the story of Gavin Grimm, a trans teenager in Virginia who tried to use the boys’ bathroom in his school when the Gloucester County School Board told him he could only use the girls’ or unisex bathroom. But the Supreme Court sent the case back down to the Fourth Circuit Court after the Trump administration rescinded an Obama-era guidance that protected trans people and let them use the bathroom for their gender identity in federally funded schools. Trump’s decision vacated one of the key legal questions — about the guidance’s legitimacy — in the case and the Fourth Circuit Court’s previous ruling, leading the Supreme Court to ask for a redo.

Bathrooms have become a big battleground for trans rights in the past few years. Access to the right bathroom is something that a lot of people take for granted, but it’s a big deal for trans people.

“This wasn’t just about bathrooms. It was about the right to exist in public spaces for trans people,” Grimm recently told me, quoting trans actress Laverne Cox. “Without the access to appropriate bathrooms, there’s so much that you’re limited in doing. If you try to imagine what your day would be like if you had absolutely no restrooms to use other than the home, it would take planning. You would probably find yourself avoiding liquids, probably avoiding eating, maybe [avoiding] going out in public for too long at a time.”

Bathrooms are also part of a broader debate about nondiscrimination protections for trans people. The argument is that trans people should be allowed to use the correct bathroom because they are protected under Title IX, which bans sex discrimination — and, advocates argue, since trans discrimination is rooted in beliefs about what people of certain sexes should be like, should also ban trans discrimination. This was the legal debate that the Supreme Court had a chance to get into — but the Court punted on Monday.

The case could have filled a big gap in civil rights laws

Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.

LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination.

The argument: Discrimination against someone based on their gender identity is fundamentally rooted in sex-based expectations. For example, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on an idea of what a person of a certain sex assigned at birth should be like. So since federal civil rights laws, such as Title IX, ban sex discrimination in the workplace, housing, and schools, they should ban discrimination against trans people in these settings as well.

This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney working on Grimm’s case, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.

Oncale says that’s irrelevant whether [Congress] contemplated it,” Block told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”

The Supreme Court was given the opportunity in Grimm’s case to decide whether this interpretation will stand up — and potentially extend explicit civil rights protections to all trans people. But after Monday, the Court’s final ruling will now have to wait, leaving trans people unprotected at the federal level for the time being.

The counterargument to trans access to proper bathrooms is a myth

Underlying this entire issue is a big myth about trans people, nondiscrimination laws, and bathrooms.

According to opponents of trans access to proper bathrooms, letting trans people use the bathroom for their gender identity would pose a public safety risk. They claim that if trans people can use the bathroom that aligns with their gender identity, men will take advantage of such policies to disguise themselves as trans women and sneak into women’s bathrooms or locker rooms to sexually assault or harass women.

But even if trans people are allowed to use the bathroom for their gender identity, sexual assault remains illegal. So a legal deterrent to deviant behavior already exists.

There’s also no evidence that nondiscrimination laws — and other policies that also let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.

Experts say LGBTQ nondiscrimination laws do not lead to sexual crimes in bathrooms. © Provided by Vox.com Experts say LGBTQ nondiscrimination laws do not lead to sexual crimes in bathrooms.

Media Matters

Conservatives usually counter that there are examples of men sneaking into women's bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.

One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto's province) protected trans people in a nondiscrimination law. So the law couldn't have been the cause.

Still, the myth has persisted, trickling up in some way or another all the way to legal battles over federal laws. And it’s a big reason this case even climbed up to the Supreme Court in the first place.

For more on the battle over trans rights, nondiscrimination laws, and bathrooms, read Vox’s explainer.

Watch: The myth behind anti-transgender bathroom bills, explained

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