The Supreme Court wants both sides in the significant case on transgender students’ rights to submit their views on the possible impact of the switch in policy on those rights by the Trump Administration. The Court’s Clerk on Thursday afternoon asked for responses by letter, due by 2 p.m. next Wednesday.
The Clerk, no doubt acting on the expressed interest of the Court, passed on the request to the attorneys involved. This was limited to the two parties — the Gloucester County School Board and the 17-year-old transgender boy, Gavin Grimm, now in his senior year at a high school in the Virginia community.
The Justice Department is not a party, but it conceivably has views on the potential impact of its new approach on the case, but may not have a way to pass that on to the Court without being invited to do so.
When the Trump Administration notified the Court on Wednesday that it would no longer insist on equal access to school bathrooms and locker rooms for transgender students based on their gender identities, it made no suggestion about what that might mean to the pending case.
There appear to be several options open to the Court in the wake of the new government policy view, but the lawyers involved may not suggest these or could offer others:
One: send the case back to the U.S. Court of Appeals for the Fourth Circuit, to take the government’s new view into account. That appeals court, in ruling in favor of the transgender youth, had relied on the view of the Obama administration that discrimination against transgender students was a violation of federal civil rights law outlawing sex discrimination. A return of the case to that appeals court would mean that the case would not be decided now by the Supreme Court.
Two: go ahead with the scheduled hearing on the pending case, now set for March 28, and decide it on the basis of the Justices’ own interpretation of the meaning of the civil rights law at issue (Title IX, a 1972 federal law). This would be the most ambitious way to get an answer to the ultimate question that appears to lie at the heart of the controversy. The Justices may have some reluctance to take such a step, especially if they believe that the ultimate question is not now directly at stake because of the way the Fourth Circuit ruled.
Three: go ahead with review of the case this term, but reschedule it for a new hearing to give the Justices more time to ponder the suggestions that lawyers make in their filings next week, and perhaps in the meantime ask the Justice Department to file its own view on the potential impact..
Four: draft new legal questions that the Court may see as arising from the policy switch, ask the parties as well as the Justice Department to file full-scale briefs on those points, and then reschedule the case for a new hearing — either in April, or in the next term, which opens in early October.
Five: do nothing this term on the Gloucester County case, and simply keep it on the docket without action to await a new case on the meaning of Title IX as it may apply to transgender students’ rights. A major test case on that issue is now pending in the U.S. Court of Appeals for the Fifth Circuit, and might be a good one for the Justices to review.
The uncertainty over whether the Gloucester County case actually puts before the Justices the ultimate question of what Title IX means as applied to transgender students is a result of the way that case reached the Justices, and how the Justices shaped their review of it.
The lawyers for the school board raised three questions in the appeal, and all three of them could be interpreted as seeking answers only on how persuasive the views of the Obama administration were on the meaning of the Title IX phrase that outlaws discrimination on “the basis of sex.”
The Court accepted for review only these two questions: “Should deference [by the courts] extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?”, and “with or without deference to the agency, should the [Education] Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?”
If the Justices viewed those questions in a narrow way, they might not feel obliged to reach their own view of what that phrase in Title IX means. However, the second of the two granted questions could be taken, in the alternative, as a request for the Justices to decide whether discrimination on the basis of gender identity is a form of sex discrimination.
Lawyers for the youth involved, and some of his supporters, do want that ultimate question settled now. The school board has also supported review based on what Title IX means, but also has suggested a narrower alternative: that is, a ruling that the Fourth Circuit Court was wrong in deferring to the Obama Administration view.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)