As demonstrated by a U.S. Supreme Court announcement Monday morning, the fight for transgender equal rights is going to be a long, divisive one. Originally the court was to hear oral arguments on the Gavin Grimm case in late March, with a decision likely in June. This week's announcement, however, sent the case back to the 4th U.S. Circuit Court of Appeals for re-consideration, thus also vacating the appeals court's earlier ruling in favor of Grimm.
In 2014, Grimm, a student attending school in Gloucester County, Virginia, came out as transgender, publicly transitioning from female to male. He then started attending high school with a male presentation.
At first the school district allowed him to use restrooms consistent with his gender identity. Later, after a group of parents objected to this policy, the school board voted to require Grimm to use either female or single use restrooms.
The American Civil Liberties Union, representing Grimm and his mother, sued the school board to allow him to use the restrooms consistent with his gender identity. They lost the case in lower court and then appealed to the 4th Circuit. The appeals court overturned the lower court decision, relying on the Obama administration's interpretation of Title IX of the U.S. Education Code: that gender identity fell within the overall definition of "sex" as defined in the Civil Right Act of 1964.
The school district then appealed the decision to the U.S. Supreme Court, which agreed to hear the case, temporarily staying 4th Circuit's decision. Recently, the Trump administration rescinded the Obama administration's guidance, offering no replacement of its own.
Prior to Monday's announcement by the Supreme Court, there was some optimism in the trans community that the "bathroom issue" might finally be resolved in its favor. Previous federal court rulings were overwhelmingly in support of the argument that gender identity was protected from discrimination by the Title IX in its definition of "sex." Support for transgender human rights has been gaining momentum throughout the United States at an unprecedented rate. Media outlets were beginning to portray transgender people as being represented in all components of the basic fabric of the human condition.
Prior to the court's announcement, numerous "friend of the court" briefs were submitted in support of Grimm, in anticipation of the case being heard. One brief was co-authored by the cities of San Francisco and New York. That, in and of itself, was not too surprising as both cities have had transgender protections in place for many years. What was also encouraging were the 29 additional cities, and mayors from around the country, that also signed on in support of the brief. This support ranged from friendly jurisdictions like Los Angeles, Philadelphia, Seattle, Minneapolis, and Chicago to typically unheralded allies on this issue like Plano, Texas; Paterson, New Jersey; Evanston, Illinois; and South Bend, Indiana.
In this brief, the signatories stated that they "have long observed the importance of protecting their transgender residents from the type of discrimination that petitioner (Gloucester County) seeks to institutionalize: exclusion from facilities and accommodations on the basis of unfounded fears and outdated stereotypes about masculinity, femininity and sexual characteristics."
Another amicus brief in support of Grimm and transgender rights was one authored by Apple, IBM Corporation, Microsoft, and 50 other major companies, many of which are tech firms founded in northern California. This list is not only comprised of tech organizations but some of largest companies in their industry sector in the U.S. including MAC Cosmetics, Mass Mutual Insurance, and Williams-Sonoma.
In their brief, these companies stated they believe "transgender individuals deserve the same treatment and protections as all other members of our society. The policy (of Gloucester County) undermines the (petitioners) policies promoting fairness and equality for their employees and customers, and thusly threatens (petitioners) business interests."
The last amicus brief that deserves attention is one filed in favor of Grimm by the presiding bishop of the Episcopal Church and President of the House of Deputies of the Episcopal Church; General Synod of the United Church of Christ; Jewish Theological Seminary; Rabbinical Association; Unitarian Universalist Association; Network of Presbyterians; Methodists Federation for Social Action; Muslims for Progressive Values; Open and Affirming Coalition of the United Church of Christ; Lutherans for Full Participation; and more than 1,800 faith leaders.
In one of this brief's many arguments in support of Grimm, the religious leaders state, "Transgender persons possess inherent dignity – a concept that has explicitly informed this courts jurisprudence for decades, and increasingly so with respect to equal protections and allied rights doctrines. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals and, more particularly, the growing respect accorded within theological traditions to transgender persons."
Some might say that this latest Supreme Court action indicates we have lost the bathroom war. Not true. We may have lost this skirmish (or postponed the inevitable affirmation of our human rights) due to the recent Trump administration's discriminatory action to rescind Obama's guidance on Title IX and its application in schools. It can also be suggested that last year's action by Senate Republicans to deny a hearing and a vote on Obama's nominee to the Supreme Court, thus allowing Trump to nominate a more conservative justice, was the beginning of this fight for a favorable Supreme Court decision. Being more of a half-full glass kind of person, I would like to believe that a decision impacting the fundamental human rights of an emerging and growing segment of the U.S. populace does indeed transgress typically liberal/conservative ideologies.
But, I am mostly optimistic that the emerging support of transgender individuals is the most encouraging indication that we will eventually gain the full array of civil and human rights as guaranteed by the Constitution. To have diverse groups such as cities from all over this country, businesses large and small, and faith leaders representing many different denominations agree and support the singular issue of transgender rights is something we rarely see.
Sure we're not out of the woods in this fight but we're certainly not dead and buried. This latest setback is merely a blip on the screen.
San Francisco, through the leadership of the mayor, Board of Supervisors, city attorney, and all of our other elected and appointed officials, continues to lead the country on the fight for transgender rights. We are a city of transgender people and we will always be a city for transgender people.
Theresa Sparks is Mayor Ed Lee's senior adviser for transgender initiatives. The views she expresses here are her own.