Will high court still hear transgender restroom case?

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New directive for schools on single-sex facilities creates uncertainty for upcoming Supreme Court arguments.

A Supreme Court case on transgender access to school restrooms and locker rooms could still go forward next month, even though the Trump administration announced on Feb. 22 it was rescinding Obama administration guidance on the matter.

The school board defending its restroom policy argues that based on the new directive, the Supreme Court should immediately vacate the lower court ruling against the school board. But transgender advocates want the case to proceed at the high court for a chance to win on the bigger question of transgender rights.

The new directive from the Trump administration uses the same arguments the Gloucester County School Board used in its legal briefs in the case. It says the Obama administration interpretation of Title IX to include “gender identity” bypassed a formal regulatory process during which it would be subject to public review. It also says states and local authorities have primary authority over education policy.

According to the new guidance, the Obama directive did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX.”

This announcement came as a surprise, given President Donald Trump’s many positions on the transgender restroom debate—he publicly opened restrooms at Trump Tower to any gender identity and criticized North Carolina for its restroom law while also arguing states should decide such matters.

In Gloucester County School Board v. G.G., a case set for oral argument at the Supreme Court in late March, a student challenged a Virginia school board’s decision to maintain sex-segregated restrooms and locker rooms. The board offered to build unisex restrooms to accommodate the student, Gavin Grimm, who was born a girl but now identifies as a boy. Grimm still considered that discrimination and sued the school board.

In 2015, a Department of Education official sent a letter to the school board saying it must treat students “consistent with their gender identity.” In 2016, the Obama administration issued a similar directive nationwide to all federally funded schools, saying sex-segregated facilities under Title IX must be open to anyone based on gender identity. The American Civil Liberties Union (ACLU), representing Grimm, has used that directive to support its case.

Deferring to the Obama administration interpretation of Title IX, the 4th U.S. Circuit Court of Appeals ruled against the school board last year. The ruling was based on the Auer doctrine, where courts submit to the administration’s interpretation of ambiguous regulations unless the interpretation is “plainly erroneous.”

When the Supreme Court first took the case last year, it agreed to consider two questions: whether courts should defer to a random letter from an administration official interpreting Title IX, and second, whether the Department of Education’s interpretation of Title IX on gender identity was correct. The Department of Education under Obama interpreted the word “sex” in Title IX to mean “gender identity.”

Now the Supreme Court must decide whether to answer those questions.

With the directive rescinded, the high court could still decide to hear the case based on the second question: whether “sex” in Title IX means “gender identity.” That could make it a blockbuster case for transgender advocates—and it’s what the ACLU wants the court to do.

Alternately, the justices could vacate the 4th Circuit’s ruling and return the case there for further consideration.

“The whole basis for the 4th Circuit’s opinion is gone,” said attorney Kyle Duncan, who represents the school board. “At a minimum, the Supreme Court needs to vacate the 4th Circuit’s opinion.”

That also might give the court time to get a ninth justice, and perhaps hear the case with a full panel later on. The Supreme Court has avoided granting blockbuster cases this term in an effort to avoid 4-4 ties.

The new Trump directive doesn’t immediately change the status quo. Neither the Obama directive to schools nor the 4th Circuit ruling against this particular school board are in effect. A federal judge in Texas issued a nationwide stay on the Obama restroom guidance last year, and it remains in place. The Supreme Court also issued a stay on the 4th Circuit ruling while the case is pending at the high court.

— by Emily Belz

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