The Trump Administration plans to move shortly to abandon the federal government’s policy of defending equal rights for transgender students, but the switch may not prevent the Supreme Court from ruling on the issue in its current term.
White House Press Secretary Sean Spicer, in his daily briefing for news reporters, said that “further guidance” will be issued, with the argument that the issue should be left to the states to decide.
He said: “The president has maintained for a long time that this is a states’ rights issue and not one for the federal government. So while we have further guidance coming out on this, I think that all you have to do is look at what the president’s view has been for a long time, that this is not something the federal government should be involved in, that this is a states’ rights issue.”
Spicer indicated that the Departments of Education and Justice were developing the new position, which could emerge later this week. The Justice Department will have the option of notifying the Supreme Court and other courts where the Obama Administration has been taking the position that federal civil rights law assures equality to transgender students in access to facilities – including bathrooms and changing rooms – in education institutions receiving federal funds. At issue is the meaning of the federal ban, under so-called Title IX, on discrimination “on the basis of sex.”
That specific issue is scheduled to come up in a Supreme Court hearing on March 28 in the case of Gloucester County School Board v. G.G. That case involves a 17-year-old senior at a Virginia high school, who won in lower courts a right to equal access to school facilities for the use of the gender that matches his identity. The youth, who has publicly identified himself as Gavin Grimm, was born a girl but now identifies as a boy.
When the U.S. Court of Appeals for the Fourth Circuit ruled in the youth’s favor, it did not rule directly on what Title IX means, but it chose to accept the Obama Administration’s views that sex discrimination under that law also means discrimination based on gender identity. As the case reached the Supreme Court when the county school board appealed, it involves both the question of whether the federal courts should defer to the government’s view, but also involves the direct question of what Title IX means for transgender rights
Because that second, broader issue is before the court, a change of policy by the federal government does not mean that the court would avoid deciding the meaning of Title IX. If the eight Justices wind up evenly split on the issue, they could send the case back to the Fourth Circuit Court to consider the government’s changed position, or they could hold the Virginia case until a ninth Justice has joined the court and hold a new hearing.
At this point, the federal government is not involved in the Supreme Court case, but the Justice Department’s Office of Solicitor General usually feels an obligation to notify the Justices of the government’s position on the meaning of a federal law that is at issue before the court. As a non-party in the case, the department could notify the court by filing a letter before the hearing set for next month. Legal briefs in support of the school board’s appeal were filed last month.
Last year, Obama Administration officials notified school districts across the nation that they now have a duty to provide legal equality for transgender students. That is the policy that the Trump Administration is about to change.
The Obama policy directive has been put on hold nationwide by a federal judge in Texas, who ruled in a case filed by a group of states that the policy is not likely to survive a court challenge.
The Obama has also taken the view that state laws that discriminate on the basis of gender identity – like North Carolina’s controversial “H.B. 2” — violate Title IX at least as applied to federally funded colleges. That view, too, is likely to be changed by the Trump Administration.
While the language of Title IX remains as it is, federal courts are not required to interpret it as federal agencies do.