On a day when the Virginia teenager pleading in the Supreme Court for rights as a transgender student attracted a wide array of support from religious, civil rights and other organizations, it became clear that the Justices will have to sort through a series of new timing issues potentially affecting the case.
The first question is how soon the Court will decide on its next step in the case. The Justices may do so as soon as their scheduled private conference on Friday. Among other timing issues now arising is whether to put the case over until the Justices begin a new Term this fall.
How the case proceeds from here on also seems likely to depend — at least in part — upon how quickly the Senate moves in its review of the nomination of Judge Neil Gorsuch to become the ninth Justice, replacing the late Justice Antonin Scalia. If Gorsuch gains approval, and if that occurs fairly soon, he could hold a potentially decisive vote because the present eight Justices have already telegraphed that they could split 4-to-4 on the case — thus deciding nothing.
The case before the Court is Gloucester County School Board v. G.G., involving access to the boys’ bathroom at a Virginia high school for 17-year-old Gavin Grimm, a transgender boy who was assigned female gender at birth. When Gavin reaches his eighteenth birthday in May, he is likely to still have no final answer on whether he will win or lose his legal case.
In fact, his case might be unfolding either before the Supreme Court or lower federal courts. He is scheduled to graduate from Gloucester High School on June 10. (If his case is not decided by then, it won’t be dismissed as no longer a live controversy because he may still have a constitutional claim so far not resolved, as well as an unresolved claim for money damages from the school board for denying him access to the restroom that matches his gender identity.)
On Thursday, the case was proceeding on a normal schedule at the Court. Thursday was the deadline for outside organizations to file friend-of-Court briefs in support of Gavin’s side of the case. Briefs in support of the school board were filed in January.
But the progress of the case through the Supreme Court has lately encountered a potential complication as a result of the new Trump Administration’s change of policy on transgender rights under the federal law that bans discrimination based on sex. The Administration has told the Court that it has retracted its support for claims like Gavin Grimm’s under Title IX of a 1972 federal civil rights law.
That development has confronted the Court with uncertainty over whether that shift will have any effect on the Virginia case. Because a federal law is at issue, the government’s views on how to interpret it usually would be an important if not always decisive factor for the Justices. In this case, however, the government is not a party, although the new Administration did notify the Court of its policy shift on Title IX. (Although government lawyers insisted that the Administration has not settled on its own view of what Title IX means, its highly visible decision to abandon its enforcement across the nation in transgender cases left little if any doubt of where it stands.)
On Friday, the Justices will meet in a private conference — the last scheduled until March 17 — so they will be under some pressure to discuss and decide whether to alter their present schedule for the case, and, if so, how to modify it.
A hearing is presently scheduled for March 28. If the Justices on Friday leave open the question of a schedule change, the late March hearing date could approach without the option of making such a change in time for the lawyers involved to adapt. That would be especially the situation if the Court opts to ask the Trump Administration to tell the Justices where it stands on Title IX’s meaning.
Lawyers for the school board, in fact, have asked the Court explicitly to bring the Administration directly into the case. That would definitely mean that the March hearing date could not be met, and the board’s lawyers suggested that change.
Actually, government lawyers usually take weeks to answer a request from the Court for views because of the need to consult among federal agencies. (Title IX is enforced by several of those agencies; the Department of Education enforces it as it applies to schools and colleges.)
The Court’s last scheduled hearing session this Term begins on April 17 and run through April 26. The Gloucester County case could be scheduled for that session; several slots are still open in that calendar.
The Court might choose to set a special hearing in May, but that would be highly unusual. It also would have the option of putting the case off until its next Term, starting in October.
If the hearing were to be set for April, Judge Gorsuch could be on the bench by that time if he has gained Senate approval and that has occurred fairly quickly. Nomination hearings for Gorsuch before the Senate Judiciary Committee are set for the week of March 20. Because he is expected to encounter stiff opposition from many Democratic senators, it is doubtful that a final vote in the Senate would come before early April at the soonest. It would be a close call whether he could be on the Court by the time for a April hearing. A hearing in May, if added by the Court, would be a more likely opportunity.
All of these timing issues might not unfold if the Justices were now to choose the option of sending the Gloucester County back to a lower courts to let it sort out first the impact of the shift by the Trump Administration. That might be quite an attractive option for the Justices because the U.S. Court of Appeals for the Fourth Circuit had relied upon the former Obama Administration’s view of Title IX that favored Gavin Grimm’s claim of discrimination. It would be a gesture of respect by the Court to give the Fourth Circuit Court the chance to reexamine its own decision.
Such a move would not mean that claims like Gavin Grimm’s would fail to be decided ultimately by the Supreme Court, because other cases are pending in lower courts and could be vehicles for Supreme Court review, perhaps as soon as next Term.
If the Justices announce nothing on Friday or next Monday about scheduling in the Virginia case, that could be at least a hint that they are going to go forward on the existing schedule.