an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last week the Trump administration withdrew the 2015 Department of Education guidance letter construing Title IX to require recipients of federal education funds to permit transgender students to use restrooms corresponding to their gender identity. That decision might have far-reaching consequences . . . but it might not, depending on how the Supreme Court handles Gloucester County School Board v. G.G., which is currently scheduled for oral argument on March 28.
Yesterday, plaintiff/respondent Gavin Grimm urged the Court to proceed full steam ahead. After all, even without the Obama administration guidance, Grimm's lawyers argue, Title IX still forbids his school from excluding him from the high school's "male" restrooms. The defendant/petitioner School Board also urged the Court to decide the case, which is not surprising given that the lower court ruled against it; the Board, however, asked that oral argument be delayed so that the new administration can weigh in (and perhaps in the hope that a delay would allow a Justice Gorsuch to participate).
Meanwhile, merits briefs have been coming in to the Court. The School Board argues that the Congress that enacted Title IX intended “sex” to refer to what the Board’s brief calls “physiological distinctions between males and females.” That is at best vague, even as applied to this very case. Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; he presents as male in virtually all material respects. The Board, however, treats him as "female" because of his external reproductive organs. The Board also argues that this treatment is consistent with Title IX, which generally permits restroom segregation between males and females.
Meanwhile, echoing the withdrawn guidance letter, Grimm's brief argues that the School Board’s policy discriminates against him on the basis of sex because the term "sex," as used in Title IX, includes gender identity. That is a potentially compelling argument, but it is possible the Court will not want to reach it if the case can be decided on narrower or more straightforward grounds.
It can be. An amicus brief that the four of us filed today argues that the school board policy excluding Grimm from the common restrooms, thereby publicly stigmatizing him as unfit to use the same restrooms as all other boys, discriminates against him based on sex in the most literal way: it excludes him from the male restrooms on the basis of his external sexual anatomy.
That exclusion, we argue, is undoubtedly "based" on sex and, as we explain at length in our brief, Title IX presumptively forbids such segregation. To be sure, a longstanding federal regulation permits federally funded educational institutions to establish sex-segregated restroom facilities, and that rule is a proper reading of Title IX as applied to most students. Nevertheless, the school board’s policy contravenes Title IX (and is thus invalid) when applied to transgender students because of the severe harm it inflicts on them without furthering any important institutional interests.
We urge interested readers to check out our brief for the details of our argument. Readers who do will note that in addition to the four of us, Eric Citron (Counsel of Record) and Kevin Russell are co-counsel. We are very grateful to them, as well as to law students Michael Chu, Jeane Jeong, Meghan Larywon and Max Schulman, for their indispensable contributions to the brief.