Wednesday, March 1, 2017

Will Gloucester County School Board v. G.G. be the next Bowers v. Hardwick?

Not surprisingly, as reported on, the parties in Gloucester County School Board v. G.G. have not been deterred by the Trump administration's rescission of guidance addressing transgender bathroom access and have urged the Supreme Court to decide whether Title IX of the Education Amendments Act of 1972 requires the defendant to allow Gavin Grimm, a transgender boy, to use the boys' bathroom at his school.

Only a few days ago, I wrote this detailed post explaining the fundamental flaws in the arguments advanced on behalf of Grimm. Briefly, Grimm's counsel assumes the answer to the central question in this case: Is Grimm a boy or a girl when it comes to using the bathroom? The argument advanced by Grimm's counsel is, essentially, that Grimm gets to use the boys' bathroom because he's a boy. This is the fallacy of "begging the question," a form of circular reasoning.

Today, as advocates ask the Supreme Court to take up the newest issue of LGBT rights, the Court has a 4-4 conservative-liberal split, with one of the conservatives (Anthony Kennedy) siding with liberals in some significant cases. Grimm's counsel is urging the Court to proceed with the current schedule with oral arguments on March 28. If that schedule is kept, the case would be heard by an 8-member Court because confirmation hearings for Judge Neil Gorsuch do not begin until March 20. The defendant, on the other hand, has asked the Court to delay the case so that the Trump administration can provide its views, and presumably, so that Gorsuch is more likely to be on the Court by the time the case is heard.

The Grimm case must be placed in historical context.

In 1986, in a 5-4 decision in Bowers v. Hardwick, the Supreme Court upheld the constitutionality of a Georgia law that authorized a prison sentence of up to 20 years for a single act of sex between two consenting adults of the same sex, even in the privacy of a home. It took 17 years for that decision to be overturned in Lawrence v. Texas, in which Justice Kennedy wrote: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." 

In 2015, in Obergefell v. Hodges, Kennedy again pulled through for LGBT advocates in recognizing a constitutional right to same-sex marriage. Although Obergefell was a landmark decision in the struggle for LGBT equality, it was hardly groundbreaking. When it was issued, numerous courts had already recognized a right to same-sex marriage. And still, advocates did no better than a 5-4 victory at the Supreme Court.

The Court is historically a conservative institution. It tends not to lead the way when it comes to social progress. In contrast to when the Court took up the issue of same-sex marriage, there is almost no case law favoring transgender bathroom access. If the Court were to rule in Grimm's favor, it would truly be groundbreaking.

The hope may be that Kennedy will once again pull through for LGBT advocates. In contrast to Lawrence and Obergefell, however, the Grimm case does not require the Court to interpret the Constitution, which speaks in terms of broad principles of equality, justice, and human dignity, but rather to interpret specific statutory language proscribing certain forms of discrimination. And not to beat a dead horse, but advocates have not even provided a sound legal argument for ruling in favor of transgender bathroom access. 

Sure, the Grimm case may turn out to be the transgender equivalent of Brown v. Board of Education. But by almost every objective measure, it is much more likely to be the transgender equivalent of Bowers v. Hardwick

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.