Trump's transgender move puts spotlight on Supreme Court case

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WASHINGTON, Feb 23 (Reuters) - The Trump administration's move on Wednesday to rescind guidance allowing transgender students to use the bathrooms of their choice has raised the stakes for an upcoming U.S. Supreme Court case that could deliver a landmark decision on the issue.

The eight justices are due to hear oral arguments on March 28 on whether the Gloucester County School Board in Virginia can block Gavin Grimm, a female-born transgender high school student, from using the boys' bathroom. A ruling is due by the end of June.

A key question in the case is whether a federal law, known as Title IX, which bars sex discrimination in education, covers transgender students. The Education Department under Democratic President Barack Obama said in guidance to public schools last May that it does, but the Republican Trump administration withdrew that finding on Wednesday.

RELATED: The faces and stories of transgender people around the world

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The faces and stories of transgender people around the world
Penelope Patterson does a one-handed push up at his home in Brooklyn, New York, U.S. December 13, 2016. Jodie Patterson's 3-year-old, Penelope, was brooding and angry until one day she asked her child what was wrong. Penelope, who was assigned female at birth, was upset "because everyone thinks I'm a girl," but he said he was really a boy. "I said, 'However you feel inside is fine.'" Patterson recalled from their home in Brooklyn. "And then Penelope looked at me and said, 'No mama, I don't feel like a boy. I am a boy.'" Almost immediately, Patterson embraced the reality that Penelope was a transgender boy, and by age 5 he was going to school as a boy. Today, at age 9, Penelope is happy and healthy as a boy who loves karate and super heroes and decided to keep his birth name. REUTERS/Brendan McDermid
Actress Laverne Cox walks in a Donna Karan creation during a presentation of the Go Red for Women Red Dress collection during New York Fashion Week February 13, 2015. REUTERS/Lucas Jackson (UNITED STATES - Tags: FASHION SOCIETY ENTERTAINMENT TPX IMAGES OF THE DAY)
Charlie Lowthian-Rickert, 10, who is transgender, is kissed by her father Chris following a news conference announcing that Canada will introduce legislation to protect transgender people from discrimination and hate crimes, on Parliament Hill in Ottawa, Canada, May 17, 2016. REUTERS/Chris Wattie. TPX IMAGES OF THE DAY
Joe Wong, 31, poses for photograph at his apartment in Bangkok April 3, 2015. Joe Wong, a 31-year-old transgender man from Singapore, underwent surgery to remove his breasts in 2007 and legally changed his name from Joleen to Joe. He had his uterus removed in 2009, and is legally recognised as a male. Wong is one of the many lesbian, gay, bisexual and transgender people in Asia who faced abuse and violence from his family. To escape the violence and find acceptance, many LGBT people migrate abroad - including Wong, who moved to Bangkok, where he currently works for the rights group, the Asia Pacific Transgender Network. To match Thomson Reuters Foundation Feature GAY-RIGHTS/ASIA Picture Taken April 3, 2015. REUTERS/Athit Perawongmetha
Transvestite Tiffany, 19, shows a scar of a knife attack in Tegucigalpa March 10, 2011. According to leaders of LGBT organizations (lesbians, gays, bisexuals and transgenders), 34 people have been murdered in the last 18 months. The U.S. embassy and United Nations Programme on HIV/AIDS (UNAIDS) have requested the government to investigate the murders and safeguard the rights of the LGBT community, local media reported. REUTERS/Edgard Garrido (HONDURAS - Tags: SOCIETY CRIME LAW)
Geraldine Roman, a transgender congressional candidate, (C) is greeted by her supporters during a "Miting de Avance" (last political campaign rally) for the national election in Orani town, Bataan province, north of Manila in the Philippines May 6, 2016. REUTERS/Romeo Ranoco
Former Olympian Caitlyn Jenner arrives for the "Glamour Women of the Year Awards," where she was an award recipient, in the Manhattan borough of New York November 9, 2015. REUTERS/Carlo Allegri
Chahat, a member of the transgender community, prepares for Shakeela's party in Peshawar, Pakistan January 22, 2017. REUTERS/Caren Firouz SEARCH "PAKISTAN TRANSGENDER" FOR THIS STORY. SEARCH "WIDER IMAGE" FOR ALL STORIES.
Qian Jinfan, an 84-year-old transsexual who prefers to be addressed as "Yiling" holds up a photo taken at the age of 59, in the town of Foshan, in southern China's Guangdong province, July 6, 2012. Qian, who told Reuters during an interview that she always felt she was a woman and experimented with hormone cream, tablets and injections at the age of 60, is believed to be the oldest transsexual to live openly in China. The retired Chinese Communist Party official said she would not undergo a sex-change operation until it fully guaranteed her a female body that was complete with a woman's bodily functions. She admitted her days may be limited, but hopes that speaking to the media can help break down traditional assumptions and initiate discussions about transsexuals in society. About 2,000 people in China have undergone sex-change surgery and up to 400,000 could be considering one, according to a report in 2009 by state newspaper China Daily. Picture taken July 6, 2012. REUTERS/Tyrone Siu (CHINA - Tags: SOCIETY TPX IMAGES OF THE DAY)
Tanya Walker, a 53-year-old transgender woman, activist and advocate, gives an interview at her apartment in New York City, U.S. September 7, 2016. Picture taken September 7, 2016. REUTERS/Brendan McDermid TPX IMAGES OF THE DAY
Renee Richards poses for a portrait at her home in Carmel, New York March 25, 2015. More than three decades after putting down her tennis racquet, Renee Richards, 80, told Reuters she is still astonished she possessed the moxie to join the women's professional tennis tour after living the first 34 years of her life as a man. For all the frenzy around Olympian Bruce Jenner's reported decision to transition to a woman, the transgender pioneer Richards, born Richard Raskind, believes nothing could be tougher than what she endured in the 1970s. Picture taken March 25, 2015. To match Feature USA-TRANSGENDER/RICHARDS REUTERS/Mike Segar
Helena Vukovic, Serbian first transgender veteran army officer, poses for a picture in Belgrade, Serbia September 7, 2016. REUTERS/Marko Djurica
Nada Chaiyajit, a Thai transgender activist, 37, poses during an interview with the Thomson Reuters Foundation at a hotel in Bangkok, Thailand, November 28, 2016. Picture taken November 28, 2016. REUTERS/Athit Perawongmetha
Transvestite Julio Yoaris Alvarez adjusts his brassiere while getting dressed at his home as the world celebrates the International Day Against Homophobia in Havana May 16, 2009. From an early age, Alvarez dreamt of having a sex-change operation and is currently awaiting his turn for one under the Cuban health care system. The surgery, like all other health care in Cuba, will be free of charge for applicants. REUTERS/Claudia Daut (CUBA SOCIETY HEALTH)
Carly Lehwald sits with her son Ben at Carly's home in Chicago, Illinois, United States, May 30, 2015. Carly is Ben's father "Charlie", and transitioning to life as a woman is the basis for a new reality television show "Becoming Us". Picture taken May 30, 2015. REUTERS/Jim Young TPX IMAGES OF THE DAY TPX IMAGES OF THE DAY
Anna Grodzka, Poland's first transsexual lawmaker, attends an introductory session to the Polish parliament for newly elected lawmakers in Warsaw October 24, 2011. REUTERS/Kacper Pempel (POLAND - Tags: POLITICS)
Naz Seenauth, a transgender man, poses in New York October 22, 2014. Seenauth's driver's license says he is male. His birth certificate says he is female. The mismatch, he says, is deeply frustrating. New York City, where Seenauth was born and raised, does not accept that he is a transgender man and will not amend his birth certificate, for now at least, even though his doctor will attest to his gender. Picture taken October 22. To match Feature USA-NEW-YORK/TRANSGENDER REUTERS/Shannon Stapleton (UNITED STATES - Tags: HEALTH SOCIETY LAW)
Damian Jackson (C), 51, shows family members his new documents after changing his officially registered gender from female to male, in the City Hall in Amsterdam July 1, 2014. Jackson is among the first to obtain new documents on Tuesday, when a new law came into effect, legalising the registration of a transgender person's preferred gender in official state documents, including identity cards and passports. It eliminates the previous law, which required hormonal treatment, surgery or sterilization before any change in gender registration is allowed. REUTERS/Cris Toala Olivares (NETHERLANDS - Tags: SOCIETY LAW)
Audrey Mbugua, 31, Kenya?s most famous transgender campaigner, poses for a photograph in her garden in Kiambu, outside the capital Nairobi, March 31, 2015. Audrey Mbugua will not say whether it was a razor blade, pills or carbon monoxide that she used to try to kill herself. Born a male in Kenya and given the name Andrew, she felt trapped in the wrong body and started dressing in women's clothes while at university, attracting ridicule and rejection. After graduation, Mbugua was jobless, penniless and alone. Picture taken March 31, 2015. To match GAY-RIGHTS/KENYA REUTERS/Katy Migiro
Randy Dolphin and transgender activist Veronika Lee-Tillman, who will be Grand Marshal in San Francisco's gay pride parade, are married during a ceremony at City Hall in San Francisco, California June 28, 2013. The couple was married at City Hall with San Francisco Police Chief Greg Suhr giving away the bride. The U.S. Supreme Court on Wednesday handed a significant victory to gay rights advocates by ruling that married gay men and women are eligible for federal benefits and paving the way for same-sex marriage in California. REUTERS/Robert Galbraith (UNITED STATES - Tags: POLITICS SOCIETY)
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The high court on Thursday asked the lawyers involved to file letters by March 1 giving their views on how the Trump action should affect consideration of the case.

Lawyers for Grimm say that the definition of sex discrimination in Title IX is broad and includes gender identity. The school board maintains that the law was enacted purely to address "physiological distinctions between men and women."

If the Supreme Court rules that Title IX protects transgender students, the decision would become the law of the land, binding the Trump administration and the states.

"This is an incredibly urgent issue for Gavin and these other kids across the country," said Joshua Block, a lawyer with the American Civil Liberties Union (ACLU) who represents Grimm.

The Trump administration's announcement "only underscores the need for the Supreme Court to bring some clarity here," he added.

The administration on Wednesday did not offer its own interpretation of Title IX, with the Justice Department telling the court only that it plans to "consider further and more completely the legal issues involved."

The administration is not directly involved in the case.

Lawyers for both Grimm and the Gloucester County School Board have urged the court to decide whether Title IX applies to transgender students rather than taking a narrower approach by sending the case back to a lower court.

In a court filing on Thursday, the ACLU said that, regardless of the administration's position, the court "can - and should - resolve the underlying question of whether the Board's policy violates Title IX."

The school board's lawyers made similar comments in their most recent court filing, saying that the meaning of the federal law is "plain and may be resolved as a matter of straightforward interpretation."

But the court could take a more cautious approach and send the case back to the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. That court's April 2016 ruling in favor of Grimm relied on the Obama administration's interpretation of the law.

Kyle Duncan, a lawyer representing the school board, said the court must at a minimum throw out the appeals court decision because "the entire basis for that opinion" was the no-longer extant Obama administration interpretation.

JUSTICE KENNEDY: PIVOTAL VOTE?

With the eight-justice court likely to be closely divided, Trump's Supreme Court nominee, conservative appeals court judge Neil Gorsuch, could end up casting the deciding vote if he is confirmed by the U.S. Senate in time. Otherwise, the court, which is divided equally between liberals and conservatives, could split 4-4, which would set no nationwide legal precedent.

Clues as to how the high court could rule can be gleaned from its decision last August to temporarily block the appeals court decision in Grimm's case from going into effect. That emergency request from the school board did not require the justices to decide the merits of the case.

The vote in favor of the school board was 5-3, with Justice Stephen Breyer, a liberal, joining the four conservative justices. Breyer made clear in a statement at the time that his vote would not dictate how he would approach the case if the court took the issue up.

That decision indicated that the court is likely to be closely divided at oral argument. Grimm's hopes may rest in Justice Anthony Kennedy, a conservative who voted against Grimm last summer but has sometimes sided with liberals in major cases, including several on gay rights.

But even lawyers closely following the case are not sure which way Kennedy could go.

"If I could predict that, I would be down in the casino," said Gary McCaleb, a lawyer with conservative Christian legal group Alliance Defending Freedom, which backs the school board.

(Reporting by Lawrence Hurley; editing by Noeleen Walder and Jonathan Oatis)

RELATED: Protests for and against transgender bathrooms

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Protests for and against transgender bathrooms

A sign protesting a recent North Carolina law restricting transgender bathroom access is seen in the bathroom stalls at the 21C Museum Hotel in Durham, North Carolina May 3, 2016.

(REUTERS/Jonathan Drake)

A man holds up a sign supporting North Carolina's anti-transgender bathroom law following Republican presidential nominee Donald Trump' campaign rally in Charlotte, North Carolina, U.S., August 18, 2016.

(REUTERS/Carlo Allegri)

Opponents of North Carolina's HB2 law limiting bathroom access for transgender people protest in the gallery above the state's House of Representatives chamber as the legislature considers repealing the controversial law in Raleigh, North Carolina, U.S. on December 21, 2016.

(REUTERS/Jonathan Drake)

Civil rights leader Reverend William Barber, president of the NAACP in North Carolina, speaks to the media inside the state's Legislative Building as lawmakers gather to consider repealing the controversial HB2 law limiting bathroom access for transgender people in Raleigh, North Carolina, U.S. on December 21, 2016.

(REUTERS/Jonathan Drake)

A gender-neutral bathroom is seen at the University of California, Irvine in Irvine, California September 30, 2014. The University of California will designate gender-neutral restrooms at its 10 campuses to accommodate transgender students, in a move that may be the first of its kind for a system of colleges in the United States.

(REUTERS/Lucy Nicholson)

Transgender people and their supporters have been fighting for repeal of House Bill 2, a North Carolina law that requires people in government buildings to use the bathroom of the gender on their birth certificate.

(John D. Simmons/Charlotte Observer/TNS via Getty Images)

Protestors gather across the street from the North Carolina state legislative building as they voice their concerns over House Bill 2, in Raleigh, N.C., Monday, May 16, 2016. House Bill 2, also known as the Bathroom Bill, which requires transgender people to use the public restroom matching the sex on their birth certificate, has received the attention of national media and the White House.

(Photo By Al Drago/CQ Roll Call)

Protestors gather across the street from the North Carolina state legislative building as they voice their concerns over House Bill 2, in Raleigh, N.C., Monday, May 16, 2016. House Bill 2, also known as the Bathroom Bill, which requires transgender people to use the public restroom matching the sex on their birth certificate, has received the attention of national media and the White House.

(Photo By Al Drago/CQ Roll Call)

Supporter of HB2 Lee Churchill from Raleigh, N.C. holds a sign stating her position outside the North Carolina House and Senate chambers gallery on Wednesday, Dec. 21, 2016 as the North Carolina General Assembly convenes for a special session at the Legislative Building in Raleigh, N.C.

(Chris Seward/Raleigh News & Observer/TNS via Getty Images)

Transgender activists and supporters protest potential changes by the Trump administration in federal guidelines issued to public schools in defense of transgender student rights, near the White House in Washington, U.S. February 22, 2017.

(REUTERS/Jonathan Ernst)

Transgender activists and supporters protest potential changes by the Trump administration in federal guidelines issued to public schools in defense of transgender student rights, near the White House in Washington, U.S. February 22, 2017.

(REUTERS/Jonathan Ernst)

Transgender activists and supporters protest potential changes by the Trump administration in federal guidelines issued to public schools in defense of transgender student rights, near the White House in Washington, U.S. February 22, 2017.

(REUTERS/Jonathan Ernst)

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