Is Trump on right side of transgender issue?

Transgender teen responds to Trump Gavin Grimm newday_00000000
Transgender teen responds to Trump Gavin Grimm newday_00000000

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Transgender teen responds to Trump 03:08

Story highlights

  • Danny Cevallos: Trump opponents on bathroom issue may be missing key point
  • To allow Title IX justification to continue would signal belief in empowered executive

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Last week President Donald Trump's administration withdrew protections for transgender students in public schools, abandoning guidelines issued under the Obama administration that let students use bathrooms and facilities corresponding with their gender identity.

The decision is likely to figure in a case currently before the Supreme Court, which centers on a 17-year-old transgender student, Gavin Grimm, who claims bathroom discrimination under Title IX, the federal law that bans sex discrimination in schools. Grimm says he felt stigmatized by the Gloucester, Virginia school system's treatment of him when he was excluded from the men's bathroom on campus. He filed a federal civil rights lawsuit against the district's school board.
Trump's action has already been described in the press and by advocates as purposefully making "life harder" for transgender students like Grimm, by letting states and local school districts "bully" them.
    And if you are a firm supporter of Gavin Grimm in his Supreme Court case (oral arguments are set for March 28), there's a good chance you're rooting against the school board and are hostile to the Trump administration for doing anything to prevent Grimm from using the bathroom of his choice.
    But you might be missing an important point: when it comes to this SCOTUS case, you may actually want Gavin Grimm to ... lose.
    WH: Transgender bathrooms a state issue
    WH: Transgender bathrooms a state issue

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      WH: Transgender bathrooms a state issue

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    WH: Transgender bathrooms a state issue 02:07
    Wait, what? That's right. An anti-Trump position might be an anti-Grimm position too.
    There are a few things to understand about this issue and this case: First, withdrawing the prior administration's guidance isn't intrinsically pro- or anti-transgender -- even though many people perceive it that way. In fact, that's not even the question before the Supreme Court.
    The original guidance on bathroom use was delivered back in January 7, 2015, when an employee of the Department of Education issued a letter stating that "Title IX ... prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity"
    In May 2016 a second letter from the DOJ and the DOE further opined that Title IX's prohibition of sex discrimination in educational programs includes discrimination based on gender identity or a student's transgender status.
    The issue now is this: Can an official in an executive branch agency -- such as the Department of Justice or the Department of Education -- simply tell the courts and everyone else, by way of a note, what Title IX means? And do the courts have to give deference to that opinion?
    At the center of the transgender bathroom debate
    At the center of the transgender bathroom debate

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      At the center of the transgender bathroom debate

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    At the center of the transgender bathroom debate 01:34
    There are only a couple options here: Perhaps you think Title IX was always intended as an anti-discrimination law including gender identity. That's a stretch, because the law simply doesn't include those words. You might think that as long as the executive branch believes Title IX includes gender identity, then that interpretation should bind the courts. Reasonable minds -- and judges -- have reached different conclusions on that issue.
    Maybe you don't care about the legal mumbo jumbo, and you think morally, Title IX should protect transgender persons. That's an understandable position. It's just not the law.
    What makes the pending Supreme Court case even trickier now is the Trump administration's new position: it will not impose any interpretation of Title IX on the courts. There's a decent argument that the executive branch, that is President Obama's agencies, never should have done this in the first place.
    Even if you take the position that Title IX should include transgender persons, you must concede that 1) it does not currently include transgender persons in its language; 2) we have an established system for changing laws; and 3) what a law should say is unfortunately not always what it actually says.
    In our system, the legislative branch is empowered to enact and amend laws, and the judicial branch has long had the authority to review and strike down acts of Congress.
    It's a fair criticism that the Obama administration might have overstepped its boundaries by trying to impose its expansive interpretation of Title IX upon schools nationwide.
    You might infer that the Trump administration's act of withdrawing the two prior letters is an act motivated by an animus against transgender persons. It's certainly possible, but then you have to concede another possibility: Trump doesn't have any problems with transgender persons, and his administration is against ANY executive attempt to alter the language of federal law, duly enacted by a representative Congress, by means of a couple of opinion letters.
    And so we come to this other paradox: Why might the staunchest opponent of the Trump administration actually root against Gavin Grimm in this pending Supreme Court case? Because Gloucester County v. G.G. is less about transgender rights, and more about the limits of executive branch power.
    The Court may conclude that Obama's executive branch agencies had the power to impose their will upon the judiciary and the citizenry. That then means the Trump administration has that same unfettered power, to tell other branches what the law is. Support for Grimm's victory might ultimately mean support for an empowered Trump administration.