Both Sides Urge Supreme Court to Decide Transgender Case Despite Trump Move

By Mark Walsh — March 01, 2017 4 min read
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Both sides in the major case on transgender rights on Wednesday urged the U.S. Supreme Court to keep the case on its docket and decide whether Title IX and its regulations require schools to permit transgender students to use restrooms corresponding to their gender identity. The school board in the case, however, does ask the court to delay arguments so the Trump administration may weigh in.

The court sought the parties’ views in Gloucester County School Board v. G.G. (Case No. 16-273) in light of the fact President Donald Trump’s administration last week withdrew two Obama-era guidance documents that called on schools to respect the wishes of transgender students when it came to restrooms and locker rooms.

“In the school board’s view, the withdrawal of those [Obama administration] documents should not prevent the court from hearing argument and resolving the questions presented,” S. Kyle Duncan, the attorney for the Gloucester County, Va., board wrote in a letter filed with the Supreme Court clerk on March 1.

The board is appealing a federal appellate ruling that sided with high school student Gavin Grimm, who was born female, but now identifies as male and was denied access to the boys’ restroom.

Because the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled for Grimm largely on the basis of a U.S. Department of Education letter interpretation of a Title IX regulation, it would not have been surprising if the school board had asked the Supreme Court to vacate that ruling and send the case back to the 4th Circuit for a fresh look.

But in Wednesday’s letter, Duncan repeated language included in the school board’s main high court brief, which urges the justices to resolve “whether, properly interpreted, Title IX and its regulations require access to sex-separated facilities based on gender identity.”

“The brief urged the court to resolve that ‘distinct question,’ because ‘the meaning of Title IX and [its regulation] on this issue is plain and may be resolved as a matter of straightforward interpretation, instead of remanding for needless additional litigation in the lower courts,” Duncan’s letter stated.

Meanwhile, lawyers for Grimm also urged the justices to decide the case.

The Trump administration’s withdrawal of the Obama guidance makes the resolution of the proper interpretation of Title IX and its implementing regulation “more urgent than ever,"Joshua A. Block of the American Civil Liberties Union, which is representing Grimm, said in his letter filed with the clerk.

The ACLU letter notes that the Trump administration document withdrew the Obama administration guidance but “refrains from taking any affirmative position with respect to whether the statute and regulation do—or do not—allow schools to exclude boys and girls who are transgender from using the same restrooms as other boys and girls.”

The letter says that without any specific Education Department guidance on Title IX and its regulation with respect to transgender students, the court will “inevitably have to settle the question” on its own, and delaying that question “will only lead to further harm, confusion, and protracted litigation for transgender students and school districts across the country.”

On a couple of issues, the Gloucester County school board provides some additional advice not addressed by the ACLU letter.

First, Duncan writes, the high court should ask the U.S. solicitor general to file a brief in the case.

“It would be unusual for the court to address questions of the sort presented here without first hearing from the solicitor general,” Duncan notes.

The Trump administration is in an unusual posture in that the Obama administration supported Grimm in the 4th Circuit, and the deadline for supporting the school board as a friend of the court had passed by the time Trump took office. The court could solve that issue by inviting the administration to file a brief at this point.

On a related note, Duncan says, the court should postpone oral arguments, currently scheduled for March 28, to allow the solicitor general’s office time to properly develop and file a brief. (There is currently only an acting solicitor general at the helm of the office.)

Although Duncan does not say so, such a postponement, even if it were just a month until the court’s April argument session (the last one of this term), could give Supreme Court nominee Neil S. Gorsuch a chance to participate in the case, assuming he were confirmed by the Senate in time. (It almost goes without saying that Gorsuch, a conservative, may be at least perceived as likely to be more sympathetic to the school board.)

Finally, Duncan suggests, if the court does not want to address the more fundamental question of whether Title IX and its regulation cover gender identity, it should vacate the 4th Circuit decision and send the case back for further proceedings.

That would eliminate Grimm’s 4th Circuit victory and would be virtually certain to mean he could not win the relief he is seeking—access to the boys’ restroom—before he graduated from high school this spring. (Whether his case would be altogether moot is another question.)

The Supreme Court will now consider the parties’ letters, and presumably decide how to proceed in relatively short order.

A version of this news article first appeared in The School Law Blog.