On Wednesday evening, the Trump administration announced that it rescinded the previous administration's interpretation of the federal sex-discrimination statute Title IX. In a letter sent to U.S. public schools, the administration decided to lift federal protections for transgender students because it caused legal confusion and "significant litigation."
Joshua Block, lead counsel on the Supreme Court case of Gavin Grimm, the Virginia teen suing the Gloucester County school board for barring him from using the restroom that matches his gender identity, took umbrage with POTUS' reason for rescinding support for the interpretation, in a call with Mic on Thursday.
"The guidance didn't create any confusion at all," said Block, who is an attorney with the ACLU. "These cases were already out there. The guidance resolved confusion."
Two of the biggest cases surrounding transgender bathroom laws were already in motion when Obama announced his historic directive. In March 2016, North Carolina passed HB2, which required people to use the bathroom that matches their gender at birth rather than their gender identity. Legal challenges to the law followed immediately. Then in April, Grimm won a victory against the Gloucester county school board in the U.S. Court of Appeals and was allowed to use the boys' restroom. Obama's guidance, which compelled schools to allow students to use the bathroom that match their gender identity, was released in May 2016.
Obama's directive interpreted Title IX, a federal statute under the Department of Education, a federal agency. Courts would usually defer to federal agencies on how to interpret their own laws — it's called the Auer deference.
On a phone call with reporters on Thursday morning, Block downplayed the effect of Trump's reversal of the previous administration, saying that the Trump administration rescinded the law, but did not reverse it.
"There's not an opinion from DOJ going the other way," Block said. "They haven't said, 'Now we allow the regulation to permit this.' They're now taking a neutral view."
This "neutral view" may stem from the fact that Trump's press secretary has said several times that Trump views this as a state's rights issue, a view he repeated at a Thursday press conference.
However, Block said that is not the case.
"Sex discrimination in public schools hasn't been something left up to the states since 1972, that's the entire purpose of Title IX," Block said. "We decided as a country in 1972 is that the federal government is going to protect anyone no matter what zip code they live in against sex discrimination."
With the Trump administration's rollback though, Block emphasized the importance of the Supreme Court taking on Grimm's case. It is expected to review the case in late March. Initially, Block said that advocates hoped that the court would not take up the case, so that the lower court's decision would stand. However, Block said that the climate for transgender students has changed under the current administration and that he thinks it's more important than ever for the court to weigh in.
"It's now incredibly important for the Supreme Court to weigh in because the administration isn't going to be doing it itself," Block said. "The costs are a lot higher for trans kids now than they were a few months ago."