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Waiting game

Gavin Grimm’s school board is trying to delay his transgender rights case before the Supreme Court

Gavin Grimm’s school board is trying to delay his transgender rights case before the Supreme Court

The Virginia school board being sued by a transgender teen over bathroom access submitted a petition Wednesday to the Supreme Court requesting a postponement of the case’s oral argument until April at the earliest.

Oral argument is currently slated to begin March 28, but attorneys representing both 17-year-old Gavin Grimm and the Gloucester County school board were asked by the court last week to submit proposals detailing how they’d like to proceed following the Trump administration’s decision last month to rescind Obama-era guidance on the interpretation of Title IX as it relates to trans students.

Joshua Block, an ACLU lawyer representing Grimm, said he was opposed to postponing the oral argument, writing that the delay would cause “further harm, confusion, and protracted litigation for transgender students and school districts across the country.” Block also wrote that Trump’s actions make the resolution of transgender protection under Title IX “more urgent than ever.”

Attorneys for the school board wrote that they thought the “better course is for the Court to proceed” with the case — but only after the Trump administration files a formal brief clarifying its position on the interpretation of Title IX, the 1972 law that prohibits discrimination based on sex for any education program or activity receiving federal financial assistance.

When the Supreme Court agreed to hear Grimm’s case in October, it signaled it would consider two questions. The first hinged on the Obama administration’s interpretation of Title IX and how it protected transgender students and their use of facilities consistent with their gender identity, rather than with the sex they were assigned at birth. The second was related to a more general definition of Title IX.

The delay sought by the school board could potentially also result in the court having a new member by the time oral argument is heard. Since the death of Justice Antonin Scalia last year, there have been just only eight justices on the Court. If argument occurs before the possible confirmation of Neil Gorsuch, the federal appellate court judge who is President Donald Trump’s pick to fill Scalia’s seat, the justices could very well hand down a 4-4 verdict. A tie would favor Grimm, as it would leave intact a lower court’s ruling, but it would not set a nationwide legal precedent about bathroom access for transgender students.

Gorsuch’s views are generally considered in line with those of Scalia, who was a staunchly conservative member of the Court.

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