Last week, the Supreme Court sent Gavin Grimm's case back to the Fourth Circuit for reconsideration in light of the Trump administration's new "guidance" that they will no longer construe Title IX to require admission of transgender students to their gender-appropriate facilities. This article will discuss the change in guidance, why the court issued the summary remand, and what Justice Gorsuch on the court would mean for future proceedings in this or similar cases.
First, the procedural history. The legal issue in this case is whether Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, requires schools to admit transgender students to the restroom and locker facilities that correspond to their gender identity, rather than their sex assigned at birth. Neither the statute nor the regulations expressly address this question. However, in 2016 the Civil Rights divisions of the United States Departments of Education and Justice released a joint "Guidance" document on the treatment of transgender students in federally-funded schools. In Administrative Procedure parlance, "guidance" is a formal statement of how the agency intends to apply its regulations. The 2016 Guidance interpreted Title IX and the implementing regulations to require that students be admitted to the facilities corresponding to their gender identity, and not required to use either the facilities corresponding to their sex assigned at birth or single-user facilities.