How Gorsuch Could Still Impact Gavin Grimm

by Abby Higgs
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After a year of Republicans digging in their heels to stymie the Supreme Court nomination of Merrick Garland, President Barack Obama's pick to replace Antonin Scalia, the 45th president announced his own choice. On. Jan. 31, President Donald Trump officially nominated Neil Gorsuch, a federal appellate judge, to fill the vacant Supreme Court seat. While Gorsuch was a more moderate pick than some analysts had anticipated (and Democrats had feared), critics were quick to point out he could be bad news for the LGBTQ community — especially with the case of Gavin Grimm, a transgender teen, headed to the Supreme Court.

On March 28, the Supreme Court is scheduled to hear oral arguments in the case involving 17-year-old Grimm, a transgender teen from Virginia who sued the School Board of Gloucester County in 2015 for barring him from using the boys’ bathroom at his high school, alleging it infringed on his civil rights. The 4th U.S. Circuit Court of Appeals in Richmond, Virginia had effectively ruled in Grimm’s favor when it directed a lower court that had ruled against him to reevaluate whether or not Gloucester Country schools had violated Title IX protections. But then the Supreme Court agreed to hear the case after an appeal from the school board last October. The Supreme Court also ruled that in the interim, the temporary stay in the appeals court’s ruling for Grimm would stand, meaning he was still barred from using the boys’ bathroom at Gloucester High and relegated back to using a single-stall facility or the restroom in the nurse’s office.

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Skimming Gorsuch’s rulings on two transgender cases in the past doesn’t paint a pretty picture. In 2015's Druley v. Patton, Gorsuch ruled against a transgender prison inmate's constitutional claims seeking hormone treatment and reassignment from an all-male penal facility. Gorsuch decided that denying such treatment would not cause "irreparable harm." And in 2009's Kastl v. Maricopa County Community College District, Gorsuch joined an unpublished opinion that stated, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on “gender stereotyping,” the employer in this case had acted within his right to bar a trans female employee from using the women’s restroom because the plaintiff had not completed gender-confirmation surgery. The court also held that “‘restroom safety' was a non-discriminatory reason for the employer's decision."

Grimm's case has gotten even more attention since Trump's decision last week to undo the transgender student protections that Obama put in place in 2016. Joshua Block, Grimm's attorney, told Reuters that the Trump administration's decision "only underscores the need for the Supreme Court to bring some clarity here."

Initially, there was some concern that Gorsuch could be confirmed and sworn in by the time Grimm’s case began, but that’s no longer a pressing issue. Professor Brian Fitzpatrick at Vanderbilt Law School tells Bustle that “Judge Gorsuch will not be able to participate when he joins the Court if the case has already been argued by the time he gets there.”

And even if Gorsuch doesn’t weigh in at all on Grimm’s case, there are more civil rights and LGBT rights cases coming down the pipeline for the Supreme Court.

However, Fitzpatrick notes that Gorsuch could still rule on Grimm’s case “if the Court decides to push the case off for re-argument next term.” Such a situation could occur, Fitzpatrick says, “if the current court divides 4-4 after the argument this term." That scenario could potentially deal a detrimental blow to LGBTQ rights, because the Supreme Court would "probably put [the case] off for re-argument next year when Gorsuch can participate and break the tie rather than issue a tie decision."

Human Rights Campaign’s Legal Director Sarah Warbelow tells Bustle that she is concerned that the split would open up the opportunity for Gorsuch to weigh in on Grimm. “The court could indeed tie and decide to rehear the case the following term,” she says. “And this is particularly worrisome given the fact that independent scholars collectively agree that Gorsuch could be the most conservative judge on the bench by far. Gorsuch is not within the ‘judicial mainstream.'"

Warbelow adds a further warning: “And even if Gorsuch doesn’t weigh in at all on Grimm’s case, there are more civil rights and LGBT rights cases coming down the pipeline for the Supreme Court.” Warbelow specifically pointed to a December 2016 ruling handed down by the Arkansas Supreme Court which could have negative consequences for same-sex couples. The court sided with the state’s Department of Health, barring both parents from having their names listed on the birth certificate; instead, the biological parents must be listed.

This is problematic for same-sex couples for a number of reasons. For one, it denies them basic spousal/parent visibility and acknowledgement. However, an issue arguably more concerning in the Arkansas Supreme Court's ruling is that it allowed a double standard to be set, because there’s no stipulation requiring as much on the birth certificates of children born to heterosexual parents who are either single or not formally married.

Indeed, attorneys for two same-sex Arkansas couples affected by this ruling petitioned the U.S. Supreme Court on Feb. 15 to review the case. If the case is taken, Justice Gorsuch will almost certainly be on the panel.

That fact in and of itself is worrisome, considering Gorsuch's past public opinions on cases involving same sex rights. For example, in 2005, he penned an op-ed for The National Review lambasting liberals' political fights, such as the same-sex marriage debate, as politics disguised in constitutional garb. “American liberals,” he wrote, “have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” on issues including “gay marriage.”

For many LGBTQ activists worried about the future of the movement in America, the last thing they want is the man behind that op-ed ruling on their protections and rights.