Supreme Court Asks Parties’ Views on Trump Shift in Transgender Policy

By Mark Walsh — February 24, 2017 2 min read
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The U.S. Supreme Court late Thursday asked the parties in the transgender-rights case set for argument next month for their views on the Trump administration’s decision to rescind Obama-era guidance calling for schools to permit transgender students to use restrooms of their gender identity.

The request came from the clerk of the Supreme Court, who asked the lawyers in Gloucester County School Board v. G.G. (Case No. 16-273) to “submit their views on how this case should proceed in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”

That document pulled back the Obama administration’s interpretation of a federal regulation under Title IX of the Education Amendments of 1972 that sex-based discrimination covers gender identity. The Trump administration document said, among other things, that “there must be due regard for the primary role of the states and local school districts in establishing educational policy.”

The U.S. solicitor general’s office informed the Supreme Court on Wednesday of the change in guidance. The case from Gloucester County, Va., which involves a transgender high school student named Gavin Grimm, is scheduled for oral arguments on March 28.

The Supreme Court clerk asks the parties to file letters outlining their views on the government’s change by next Wednesday, March 1.

The parties are the school board and Grimm. There is no provision in the court’s request for the Trump administration or any groups that have filed friend-of-the-court briefs in the case to express their views on how the court should proceed.

It’s practically inherent in the request that the high court is contemplating some course other than proceeding with the arguments as scheduled, such as returning the case to a federal appeals court for further consideration. But thus far, neither party made such a suggestion to the court.

The Gloucester County school board, whose policy prohibits Grimm from using the boys’ restroom, applauded the Trump administration’s action Wednesday, but said in a written statement that “we look forward to explaining to the Supreme Court why this development underscores that the board’s commonsense restroom and locker room policy is legal under federal law.”

Meanwhile, Joshua A. Block, an American Civl Liberties Union lawyer representing Grimm, told reporters in a teleconference earlier on Thursday (before the Supreme Court asked for the parties’ views) that he saw no reason the justices should not keep the case on the court’s docket.

Even though the Trump administration has withdrawn the federal guidance that was critical in a ruling in Grimm’s favor last year by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., the justices could still decide the more fundamental issue of whether Title IX’s prohibition on sex discrimination in education encompasses gender identity, Block said.

“I think having some clarity from the Supreme Court on what the statute means is now more important than ever,” he said.

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