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Could Transgender Bathroom Case Impact Justice Kennedy's Legacy?

The Supreme Court's move to take up a case involving transgender rights could have implications for Justice Kennedy's LGBT legacy.
Image: U.S. Supreme Court Associate Justice Anthony Kennedy arrives to attend the 64th Annual Red Mass at the Cathedral of St. Matthew the Apostle in Washington
U.S. Supreme Court Associate Justice Anthony Kennedy arrives to attend the 64th Annual Red Mass at the Cathedral of St. Matthew the Apostle in Washington, Oct. 2.Joshua Roberts / Reuters

Justice Anthony Kennedy has spent the last 20 years carefully cultivating a reputation as one of the strongest gay rights champions to ever sit on the U.S. Supreme Court. But the justices’ surprise move to take up a case involving transgender rights last month could cast a spotlight on the longtime swing voter and have implications for his broader LGBT rights legacy.

“Kennedy’s a conservative of a very different generation than people advocating for the ‘T’ in LGBT, and I think he’s going to be a difficult vote to get," said David Cohen, a law professor at Drexel University.

In the last week of October, the high court broke with its typical go-slow approach on controversial issues and said it would hear a case involving a transgender student’s right to use the bathroom matching his male gender identity at school.

The student, 17-year-old Gavin Grimm, and his attorneys at the American Civil Liberties Union argue that he has a right to use the bathroom corresponding to his gender identity under a federal law known as Title IX, which bans sex discrimination by schools receiving federal funds. The Obama administration, whose Justice and Education Departments filed friend of the court briefs on behalf of Grimm, agrees.

But the Virginia school board on the other side of the case counters that Title IX applies only to the kind of sex discrimination that's based on the physical characteristics assigned at birth, not to discrimination based on gender identity.

The case stands to have major implications for transgender students across the country as similar suits wind their way through the federal judiciary. It could also affect transgender people more generally who seek protection under other statutory prohibitions on sex discrimination — such as Title VII of the 1964 Civil Rights Act, which governs employment.

Image: Gavin Grimm
Gavin Grimm on his front porch during an interview at his home in Gloucester, Virginia, Aug. 25, 2015. Steve Helber / AP

One case that’s likely to be impacted by the Virginia suit, for example, is the Justice Department’s challenge against a North Carolina law banning transgender people from using government building bathrooms in accordance with their gender identities. That law, the Justice Department argues, violates both Title VII and Title IX, along with the Violence Against Women Act, and therefore hinges considerably on how broadly the Supreme Court chooses to define “sex discrimination” in the Virginia suit.

But legal experts say that for Kennedy, the case could complicate his celebrated status as a gay rights icon — one established by authoring every major decision advancing gay rights since 1996.

“I think history will look poorly on this if Kennedy doesn’t vote in favor of Grimm,” said Drexel University's Cohen, adding that he believed the justice would likely not be convinced by Grimm's argument.

Related: Appeals Court Hears Trans Student’s Challenge to School’s Bathroom Policy

The Supreme Court will hear the Virginia case sometime in 2017 — just two years after Kennedy handed down the landmark ruling in Obergefell v. Hodges that effectively legalized marriage equality across the country.

It was the Reagan appointee’s fourth opinion affirming the rights of gays and lesbians since 1996, when in the case of Romer v. Evans he found that a state could not prohibit gay people from receiving protection against discrimination.

Kennedy went on to author the majority opinions in Lawrence v. Texas, which found anti-sodomy laws unconstitutional; United States v. Windsor, which gutted the Defense of Marriage Act (DOMA), a law that prevented the federal government from recognizing same-sex marriages; and lastly, Obergefell, the 2015 case that made marriage equality the law of the land.

Three of those decisions — Lawrence, Windsor and Obergefell — were all handed down on June 26, perhaps signaling Kennedy’s self-awareness of his central place in history.

LGBT advocates were quick to recognize it too; many showered the now 80-year-old justice with praise following the 2015 decision. And when two of the plaintiffs from Michigan adopted their fifth child last year, they named her Kennedy.

Little is known about the justice’s views on transgender rights, however, and some legal scholars believe his past decisions on women's roles foreshadow to LGBT rights advocates how he’ll rule next year.

“He’s had a very limited view of the role of women in society,” Cohen said, pointing to a 2001 case in which Kennedy upheld a law that treats foreign-born children of American mothers differently from those of American fathers. In her dissent, then-Justice Sandra Day O'Connor criticized Kennedy’s majority opinion for “reflect[ing] the stereotype of male irresponsibility.”

“Other than a little here and there around abortion, Kennedy has been very conservative on other gender cases and I think that could come through here,” said Cohen.

Kennedy sided with the high court’s liberal wing in striking down one of the nation’s toughest restrictions on abortion earlier this year.

But he also authored a 2007 opinion upholding the federal Partial Birth Abortion Ban, relying in part on traditional narratives about motherhood and stories of women who second-guessed their decisions to have an abortion. In her dissent, Justice Ruth Bader Ginsburg called Kennedy’s notions about a woman’s place in the family “ancient.”

Some legal scholars predict those views may pose a challenge for Grimm and his attorneys, who are tasked with bringing a first-of-its-kind lawsuit before an incomplete Supreme Court bench amid a civil rights debate that has not been going on for very long.

There are no explicit protections based on gender identity in Title IX or Title VII, leaving courts that have considered discrimination claims from transgender individuals in the past to rely on a broader, more modern understanding of what constitutes unlawful sex discrimination.

One of the most prominent court decisions that supports coverage for transgender individuals under existing bans on sex discrimination is a 1989 Supreme Court case involving a Title VII claim by a female employee who was told to “walk more femininely, talk more femininely, [and] dress more femininely” in order to secure a promotion. In that case, Price Waterhouse v. Hopkins, the high court found evidence of sex discrimination in the “context of sex stereotyping,” setting an important precedent for employment discrimination claims from transgender individuals.

Kennedy dissented in that case, saying the majority had “manipulate[d] existing and complex rules for employment discrimination cases in a way certain to result in confusion.”

“[T]rans rights may be a bridge too far for him,” said Columbia Law School professor Katherine Franke in an email to NBC News.

If Kennedy does side with the conservatives and there are still only eight justices, a 4-4 split would mean the Fourth Circuit Court of Appeals’ ruling in favor of Grimm would stand. If by then, however, the court has a new conservative justice appointed by President-elect Donald Trump, a decision from Kennedy to rule against Grimm would reverse the Fourth Circuit's decision and potentially set a national precedent excluding transgender people from Title IX protection.

Yet there's still a decent chance, some legal experts say, that Kennedy will side with the liberals.

“I think that Kennedy, given his decisions in Windsor and Obergefell, is sympathetic to the claims of sexual and gender minorities who say they just want to be treated with respect,” said UCLA Law professor Douglas NeJaime. “It’s early for the courts to be weighing in on this question… But in terms of substantive transgender rights, I think this case presents the issue in a way that makes concrete the actual harms that people experience on a daily basis when they’re discriminated against.”

That’s certainly the hope of Grimm’s attorneys.

On a recent press call, Joshua Block of the ACLU told reporters he was disappointed the Supreme Court decided to take the case, keeping Grimm out of the boys’ bathroom in the meantime. But he was also optimistic about the end result.

“The core issue in this case is the dignity of trans people, the individual dignity of trans people,” Block said. “And Justice Kennedy has been very vocal in saying that protections against sex discrimination in the Constitution aren’t designed to protect groups; they’re designed to protect individuals. I think that that insight is really applicable here.”