Trump Trans Decision Creates Supreme Court Conundrum

The Supreme Court is suddenly facing a tricky decision — you might even say it's caught between a rock and transgender bathroom case. Or maybe not.

The high court was planning to wade into the mess over transgender students and bathroom facilities schools, before the latest decision by the Trump administration.

The Trump Justice and Education Departments announced this week that they're rescinding the Obama administration's guidance on school bathrooms, and that has changed everything. 

The original Obama policy instructed public schools that under the federal law (Title IX) that forbids sex discrimination in education settings, the term "sex" would also include "gender identity."  

Practically speaking, the policy meant that schools must allow transgender students to choose what bathroom they would like to use.

The Obama administration was trying to force schools to obey the policy, threatening to withhold federal monies from school districts that did not comply.

The Trump administration's decision to withdraw the federal policy strikes at the heart of a Supreme Court case involving a transgender teen who sued his Virginia school district after it forbid him from using the boys' bathroom facilities.  

Seventeen-year-old Gavin Grimm was born a girl and self-identified as a boy in high school.  

Grimm's attorneys relied heavily on the Obama policy in making their legal arguments, and the U.S. Court of Appeals for the 4th Circuit used the guidelines in issuing its decision favoring Grimm.

Now, the Supreme Court is asking attorneys on both sides of the case to submit recommendations on where it should go.  

The justices are scheduled for oral arguments in Washington, D.C. on March 28th. But now court may bow out of the case in order to avoid a major ruling on transgender students.

The stakes are high for both sides.  

Matt Sharp, an attorney with Alliance Defending Freedom, is working on three related school bathroom cases that the Supreme Court decision will likely affect.  He would like to see the court take the case right now, even though there's the risk of a split decision with one empty seat.

"It's an issue that the ACLU and others will continue to press," he told CBN News. "I think getting some clear rules would really clarify the issue."  

Sharp argues that those who created Title IV never intended it to include gender identity discrimination. "The word 'sex' was always understood as meaning the biological difference between men and women," Sharp said.

If the court decides not to hear the case, it could simply return it to the 4th U.S. Circuit Court of Appeals, which would then need to revisit the case.