Last week, the Trump Administration did exactly what many dreaded regarding transgender students. The Justice Department and the Education Department issued a letter that withdrew the Obama Administration’s letters directing schools to allow transgender students to use bathrooms consistent with their gender identity (rather than genitalia, chromosomes, or sex assigned at birth). The same day, the Office of the Solicitor General sent a letter asking the Supreme Court to take note of this about-face in the government’s position on what Title IX requires of schools. The Supreme Court was set to resolve two questions this term in the case of the Gloucester County School Board against Gavin Grimm, a transgender teen-age boy: first, whether the federal government’s view on transgender bathroom use was entitled to deference by courts; and, second, whether the government’s interpretation was correct.

Title IX, which prohibits discrimination “on the basis of sex,” says nothing about bathrooms. But a federal regulation from 1975, three years after the passage of Title IX, clearly says that schools may segregate bathrooms “on the basis of sex.” As questions grew about what, exactly, that meant for transgender students, the Obama Education Department’s Office for Civil Rights issued informal letters stating that schools are obliged by statute and regulation to treat transgender students’ gender identity as their “sex.” In other words, the term “sex” in the phrase “on the basis of sex” meant “internal sense of gender.”

The Supreme Court was supposed to decide whether the agency’s interpretation should get deference, even though it was expressed informally rather than through proper legal regulation. But even in its most deferential mode, the Supreme Court is hardly likely to defer to a position the government now explicitly won’t defend. The Court has asked both parties in the case to submit, by Wednesday, their views on how the case should proceed in the face of the government’s changed position. This request means the Court is considering dismissing the case, because the retraction now makes it a bad vehicle for clarifying the deference issue, or sending it back to the lower court—where Grimm won—to reconsider in light of the change.

Both parties, however, will likely want the Court to decide the case this term—to put aside deference to the agency’s interpretation and just tell us directly what Title IX means. For the school board, a dismissal would leave in place a lower-court decision in which it lost. And in a redo, the lower court isn’t any more likely than the Supreme Court to decide for the school board. That is especially true if the Supreme Court chooses to extend the schedule, as it has already done once in the case, and Neil Gorsuch is confirmed in time to participate; Gorsuch favors interpreting legal texts strictly, and the relevant texts here mention “sex,” not gender identity. For the A.C.L.U. lawyers representing Grimm, the best hope for progress on transgender rights is a declaration by the Supreme Court that Title IX’s ban on sex discrimination requires schools to treat transgender students in a way that is consistent with their gender identity. That would be better than waiting to see what further moves the Trump Administration makes on transgender students. A loss in the Supreme Court is perhaps not any worse than what the Administration may have in store.

There is an emerging consensus that the Court will dismiss or remand the case. But there are also reasons to believe that the Court will just decide it. The Justices know that not deciding leaves immense uncertainty about the meaning of a key federal statute, fuelling an increasingly nasty and polarizing controversy around which facilities transgender students should use. That uncertainty is needlessly harmful to students and unsettling for schools. This is not to say that a fractious public debate over what constitutes discrimination against transgender people can be fully resolved anytime soon, much less by the Supreme Court. But it would be senseless for the Court to step away from resolving the issue of whether, and how, Title IX addresses transgender bathroom access, in a case that squarely presents it and that the Court has already agreed to hear.

As I have written before, we should seriously question the reasons for gender-segregating bathrooms in the first place. But as long as we do segregate, the morally correct result is one that does not force children to use school bathrooms for the opposite gender, given the humiliation it may cause to those who already struggle to be accepted in school. Title IX’s language does not offer a slam-dunk in favor of that outcome. There is, however, enough ambiguity there to enable the Supreme Court, considering the statute’s broad anti-discrimination purpose, to interpret the phrase “on the basis of sex” to encompass gender identity for the purpose of school bathrooms. To put a fine point on it, Justice Kennedy could well write such an opinion, joined by four liberal Justices, much in the vein of his inspired decisions recognizing protections for gay rights even where legal bases were less than crystal-clear. So, once again, Justice Kennedy holds the key to a divided social issue.

If the Obama Administration had issued a binding regulation rather than explicitly nonbinding letters, its protection of transgender students could not have been so easily undone. But a letter is easy to issue, and the Administration may have feared that a proposal to enact a regulation on transgender students would face pushback and take up a lot of time and resources. The Trump Administration’s quick retraction of the previous guidance perfectly illustrates what is wrong with this approach—and with the argument that agencies should get deference on informally expressed views. Imagine if the Education Department now wanted to go beyond the retraction and try to enforce a policy of requiring schools to treat all students according to their genitals, chromosomes, or sex assigned at birth. On such a controversial issue, we would not want the agency to act the way it did during the Obama Administration, threatening to enforce an interpretation of federal law without considering comments from the public. We would want them to go through the hard and revealing work of the formal process, which takes into account public views—and also makes the result more legitimate and more difficult to retract. If the Trump Administration fails to do that work, courts should not defer to its guidance, either.

At this moment, though, it is important to remember that the Trump Administration’s current position is limited to withdrawing Obama’s guidance. It does not mean that schools must treat transgender students in a way that is inconsistent with their gender identity, and it will be harmful to transgender students to speak as if it does. In some states, such as Washington, the withdrawal of the Obama transgender guidance has no practical legal consequence, because the state already mandates access to gender-corresponding bathrooms for transgender students. That provides a clue to what we will see next: efforts at the state and local levels to codify the very policies that are being abandoned federally. Some states, anticipating the Office for Civil Rights’ withdrawal of its guidance, from 2011, on how schools should investigate and adjudicate allegations of sexual violence between students, already have legislative proposals to codify the most controversial aspects of that letter.

The potential to protect transgender students at the state and local level, while real, may be cold comfort, given communities’ varying attitudes on transgender rights. But humble state and local measures that are binding law may end up protecting students more reliably and permanently than a high-profile federal agency guidance that is here one day and gone the next.