By Lyle Denniston
Both sides in a major Supreme Court case on the legal rights of transgender students urged the Justices on Wednesday to move ahead with full review and a prompt final decision on the meaning of a key federal anti-discrimination law. However, the county school board involved in the case asked the court to delay the case and, in the meantime, to seek the Trump Administration’s legal view now that the government has changed its policy.
Nothing would be gained, both sides contended, by sending back to lower courts the case of Gloucester County School Board v. G.G., since the core legal question is already fully developed before the Justices. Lawyers for the transgender youth involved in the case – a 17-year-old high school senior identified publicly as Gavin Grimm – also argued that delay in settling the legal question risks actual harm, physical and emotional, to transgender youths across the nation.
The core issue that the school board and the youth want settled is whether a 1972 law that bars discrimination in education “on the basis of sex” also outlaws discrimination based on gender identity. A transgender person is an individual who was assigned one gender at birth but later comes to accept the identity of the opposite gender. Grimm was designated a girl at birth but now accepts that he is a boy; he wishes to use school restrooms and lockers that match his identity, over the school board’s opposition.
For the past several years, the Obama Administration had energetically enforced its view that the phrase, in the law known as Title IX, does apply to bias against transgender students in schools or colleges that receive federal funds.
Last week, the new Trump Administration decided that it was withdrawing that interpretation of Title IX, and it notified the court of the shift. It took no position, however, on how that might affect the Gloucester County case. The federal government is not directly involved in that case. In response to that shift in policy, the court asked lawyers for the school board and the student to file letters on the potential impact on the case.
As of now, the case is scheduled for a hearing before the Justices on March 28. Both sides told the court that the case should go ahead.
The school board, though, suggested that the court hearing be put off at least until the court’s April hearing session. It did so because it recommended that the court now ask the Trump Administration’s Justice Department to take a position on the legal issue at stake, and the court should allow some time for that to occur.
“It would be unusual,” the board’s letter said, “for the court to address questions of the sort presented here without first hearing from the Solicitor General.” That is a reference to the officer in the Justice Department who is the government’s top advocate in the Supreme Court.
The board’s suggestion to summon the new Administration into the case was not supported in the letter filed by lawyers for the high school student. They put their strongest emphasis on the expressed need to get the basic legal dispute settled promptly, in the interest of the youths affected directly by the issue.
It seems likely that the Justices will discuss these new developments when they meet on Friday in a closed-door conference to discuss pending cases. They very likely see a need to make up their minds well before the scheduled March 28 hearing.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)