On Friday, members of the Obama administration filed an amicus brief in support of Gavin Grimm, the 17-year-old transgender Virginia teenager who will head to the Supreme Court on March 28 to fight for the ability to use the public facilities that match his gender identity.
Two former secretaries of education, Arne Duncan and John B. King Jr., signed onto the brief, as well as several officials from the departments of Education, Justice, Labor and Health and Human Services.
The brief underlines the former officials' support for the Obama administration's interpretation of federal statute Title IX, which prevents sex discrimination, and also applies to gender identity. Obama announced his administration's historic guidance on the law in May. According to the brief, the Departments of Education and Justice reached their conclusions on the law after careful analysis of legal precedent.
"The executive branch officials responsible for implementing federal law have conducted a careful analysis of the law and have each come to the conclusion that the statutory bans on sex discrimination cover discrimination based on gender identity," the brief reads.
According to the brief, the departments concluded that Title IX does protect transgender students from discrimination:
The Department of Education's analysis determined that an individual may face discrimination on the basis of "sex" under Title IX regardless of whether that person's gender is different than that recorded on their birth certificate. Accordingly, it concluded that individuals whose gender was different than their sex designated at birth could not be precluded under Title IX, among other forms of discrimination, from using the restroom corresponding with their gender identity. The Department of Justice separately and in parallel reached the identical conclusion.
When the Trump administration rescinded the guidance, which was issued by the departments of Education and Justice, it cited legal confusion, saying the interpretation caused "significant litigation." In an earlier interview with Mic, ACLU lawyer and lead counsel on Gavin Grimm's Supreme Court case, dismissed the Trump administration's assertion.
"The guidance didn't create any confusion at all," Block said. "These cases were already out there. The guidance resolved confusion."
In a letter to schools, the Trump administration said its withdrawal of the guidance "does not leave students without protections from discrimination, bullying or harassment."
The Obama-era officials urged the Supreme Court to affirm the lower court's decision. Prior to his Supreme Court case, Gavin Grimm won a victory in federal court which allowed him to use the public school restroom that matched his gender identity. In August, the Supreme Court issued an injunction on the decision to decide whether they would hear an appeal of the case. The injunction meant Grimm once again could not use the appropriate restroom. The Supreme Court chose to hear the case in October.
Trump has said that he believes transgender restroom policies is something best left to individual states to decide.
The Obama administration's amicus brief further underscores the ACLU's own arguments for why there should be federal guidance on transgender bathroom rules.
"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 that the federal government is going to protect anyone no matter what zip code they live in against sex discrimination."
Read the brief below.