First thing that happens: The case goes back to the 4th circuit.After that?Well, life gets complicated.
First off, there has been an incredible amount of effort put into the case on both sides but I’d be lying if I said I didn’t think there was a hell of a lot more happening on Grimm’s side of the fence than the other.18 States Attorneys General filed an Amicus brief in support of Grimm, as have advocacy groups of all stripes.Private industry giants like Apple, IBM, Amazon and Google have also thrown hats into the fight.
So… what happens to that invested effort?Well, because the court has ruled the legal situation to have changed, portions of many of those briefs may need to be re-written and re-submitted to the 4th circuit.If the people who submitted to the supreme court choose to do so at this stage of the case.
Some players, Lambda Legal, the ACLU, the HRC and others who are closest to this issue will hang with Gavin to fight things at the 4th circuit.But everyone else?Questionable.
No matter what happens in the 4th circuit the decision is likely to be appealed.If Gavin Grimm loses the case, it’s likely that it will once again be submitted to the Supreme Court.If he wins the case, it’s a near certainty that it will be.
What happens after that, however, is questionable.The court, depending on the ruling issued by the 4th circuit, may not take up the case again.Meanwhile, the Trump Administration has bought itself time.
President Trump has nominated a justice to fill the current vacancy on the court but it will take time to get that nominee (or another one) through the approval process.While Mr. Grimm’s case moves through the 4th circuit and potentially through the appeal process back to the Supreme Court, there is an opportunity for the composition of the court to change.Beyond that, this is a resource drain.
The Trump administration, in withdrawing the Obama administration’s guidance on this issue and issuing new guidance managed something important: It took a target away from people who had already aimed sizable volleys.A case before the Supreme Court is an opportunity to settle the issue.Much like Obergefell v Hodges settled same sex marriage, Grimm v Gloucester School Board could have put an end to the trans bathroom debate.
That opportunity gave people supporting transgender rights a reason to bring out the metaphorical ‘big guns.’ Now they have done so, they’ve taken their shot, invested not only money and time but also political capital and singular opportunities to influence public opinion… and the target went away before the bullets could land.What does the headline look like nine months from now?Apple CEO still supports transgender bathrooms, state Attorneys General once again file briefs in support of Gavin Grimm and transgender people… It’s expected.
Not bold, not leading the charge, not making a stand on an issue in a way that also does positive things for the brand by grabbing headlines… it’s expected.And if they don’t?Headlines that read: This time around, [Company X] isn’t standing with trans people, why did they abandon Gavin?
or [Company y] proves that supporting transgender people was an empty grab for publicity and they have failed to renew support….It’s not the same no matter what happens.As a strategy, this one’s pretty damn brilliant.
Now we’ll have months or as much as a year of states wrangling over bathrooms.It gives GOP legislators a useful pony to ride into the 2018 mid-term elections, the Trump administration gains an opportunity to change the composition of the court before the case is heard, and everyone involved gets hauled into an extended fight rather than a decisive one near its conclusion.“There is no instance of a nation benefitting from prolonged warfare.”― Sun Tzu, The Art of War Sun Tzu had it right thousands of years ago and it still holds true in both military and political struggle.