Analysis

The newest version of a civil rights movement – claims of equality for transgender people – has been building toward the Supreme Court at a very fast pace. On Wednesday, the Justices took their first action on the issue in a significant case, and the signals were mixed.

 For now, the court – by a 5-3 vote – has stalled the case of Gloucester County School Board v. G.G. and that will very likely mean that a 17-year-old transgender boy in the town of Gloucester Courthouse, Va., will be denied access to boys’ restrooms at school when his senior year begins next month.
At the same time, Wednesday’s order created at least the impression that, if the Justices do take up the school board’s case (probably weeks from now, at the earliest), they could wind up split 4-to-4 and that would mean a legal victory for G.G. and his mother, who is supporting his legal efforts.
It is no doubt inevitable that, at some point before long, transgender rights will become a fully developed civil rights issue before the Justices, focusing on the meaning of sex discrimination in three federal laws. The core issue is simple: does the word “sex” in those civil rights laws include gender identity in the protection against discrimination?
Gender identity is now the preferred phrase, within the community of transgender activists, for the medical phenomenon of a person who is assigned one gender at birth but later becomes identified as the opposite. That is the case with the boy G.G. in the Virginia case; identified as a girl at birth, he now identifies as a boy.
The Obama administration, which has become very energetic in recent years in promoting equality for transgender people, has added major help to a movement for equality that had already been developing for several years.
The administration recently told school officials across the nation that bias against transgender students is a violation of federal law, and they risk losing huge sums of federal money if they break the law. Lawsuits have sprung up across the country, on both sides of the issue. For a time, it looked as if the fastest developing cases were in North Carolina, contesting a new law here that restricts transgender people’s access to restrooms and changing rooms in all state facilities.
But the Virginia case sped along, and got to the Supreme Court first. The actual appeal is not due to be filed until near the end of this month. But the school board sought a temporary order from the Justices to delay lower court orders requiring that G.G. be given access to the boys’ restroom at school.
While the case, at the human level and at the legal level, is about the meaning of “sex” in civil rights law, it reached the Supreme Court also as a potentially major case on the powers of federal government agencies to write and enforce their own rules to carry out federal laws. For the technically inclined, then, the case can be viewed as being all about “Auer deference.”
Seeing the case that way may be a turn-off for many Americans. But, in that very sense, the lawyers for the Gloucester County school board figured they have a very good case for gaining Supreme Court review. And that might well have played a role in Wednesday’s order in that case. What is that all about?
The phrase refers to a Supreme Court decision in 1997, titled Auer v. Robbins. There, building upon some thoughts the court had made in 1945 in another case (Bowles v. Seminole Rock & Sand Co.), the Justices ruled that federal courts are essentially to take the word of federal officials about what their own agency rules mean, if those rules are fuzzy in what they do cover. Instead of independently reviewing the agency interpretation, courts were to defer to the agency view, according to this legal perspective.
Three of the four Justices who voted on Wednesday to stall the Gloucester County case have said that the whole idea of “Auer deference” should be reconsidered by the Court. That approach hands over to federal agencies a task that the courts are supposed to have, according to the criticism. (The late Justice Antonin Scalia, who died in February and who wrote the Auer ruling for a unanimous court 19 years ago, had also become a critic of it.)
This kind of deference became an issue in the Gloucester County transgender case because that is exactly the approach that the U.S. Court of Appeals for the Federal Circuit used in accepting the view of federal education policymakers that discrimination “based on sex” in federal law includes discrimination based on gender identity. The government’s own rules on what “based on sex” meant were ambiguous, the appeals court said, so the court took their word for it that gender identity was protected, too.
That very likely was one factor that led at least some of the Justices to delay the Fourth Circuit Court’s ruling until they could decide whether to review the school board’s coming appeal. Another factor on that side of the case is that federal officials previously had written rules that schools had a legal duty to keep bathroom facilities separated for the sexes. The school board contends that those rules should be the controlling ones.
It took the votes of five Justices to agree to postpone the orders in the Gloucester County case – the ruling by the Fourth Circuit Court, as well as an order by a trial judge in Newport News implementing the appeals court ruling. It was clear that the delay had the explicit support of three of the Auer critics: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas. They were joined by Justice Anthony M. Kennedy, to make four.
Then, as an act of what he called “a courtesy” to the four Justices who wanted delay, Justice Stephen G. Breyer added a fifth vote for postponement. He cited the fact that the court was in summer recess – probably a hint that there was not much chance for a full discussion – and he added that the order only kept things as they were before the appeals court had ruled.
Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor said, without explanation, that they would have denied the school board’s delay request.
Although the dissenters did not say what their reasons were, it is probable that they saw this case as procedurally not fully developed, because there has been no final ruling on G.G.’s rights, just the temporary orders that were put on hold, and also that the case involved only a school’s accommodation for a single student.
They also may well have thought that, given how novel the transgender legal issues are so far, it probably would be a good idea for the court to let the issue percolate some more in lower courts, to see how they react.
As a result of the court’s order, nothing will happen at Gloucester County high school until after the Justices have made up their minds whether to take up the case for full review. If normal schedules are followed, even that decision won’t be made until at least November.
For the transgender movement, there was also the prospect that, if the Court does grant review, Justice Breyer would link up with Wednesday’s dissenters, and in opposition to the four Justices who unqualifiedly supported the delay. That 4-to-4 split would put back into effect the appeals court ruling in favor of G.G.’s right to equal access to the boys’ restroom. There is a real chance that the Court will still have only eight Justices when and if the case did come up for review.
The same would be true if, when the court does examine the school board’s appeal, it chooses not to hear it at all, perhaps accepting the notion that it is too soon to get involved. A denial of review would simply wipe out Wednesday’s temporary order.

(This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)