A Counterfactual History of Transgender Students' Rights

Abstract

Disputes about transgender students’ rights are growing in number and prominence. In spring 2017, when the Trump Administration rescinded the Obama Administration’s guidance that had protected transgender students, the Supreme Court cancelled oral argument in Gloucester County v. G.G., the case it was scheduled to hear on this topic, vacated the lower court’s opinion, and remanded the case. But what if that hadn’t happened? Specifically, what if Hillary Clinton had been elected president, the guidance had remained in place, and the Court had heard oral argument as originally scheduled in Gloucester County? This piece employs the approach of counterfactual history, presenting what I believe would have been the Court’s decision in Gloucester County in an alternate reality: The Supreme Court would have sided with student Gavin Grimm on administrative law grounds with Justice Kennedy, the swing vote, giving the liberal justices their fifth vote. Continuing in this parallel universe, I take what surely would have been an initial reaction by transgender advocates — that the decision was “the Brown v. Board of transgender rights” — and test the limits of that statement. Finally, I return to the present day, reflecting on what we can learn from the counterfactual history, considering how that knowledge can inform our understanding of what happened and why, discussing the current and emerging litigation in this area, and analyzing the importance of policy choices at the state and local level.

Keywords: school, students, transgender, gender, Title IX, equality, Equal Protection, discrimination