Will high court still hear transgender restroom case?

Transgenderism | New directive for schools on single-sex facilities creates uncertainty for upcoming Supreme Court arguments
by Emily Belz
Posted 2/23/17, 02:23 pm

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 Wednesday 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.”

Yesterday’s 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.

Emily Belz

Emily is a senior reporter for WORLD Magazine based in New York City. Follow Emily on Twitter @emlybelz.

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  • Minivan Man's picture
    Minivan Man
    Posted: Fri, 02/24/2017 07:57 am

    I suspect many readers share my disbelief regarding the issue of transgenderism, but are there any proponents out there who can explain the difference between someone who is truly transgender versus someone who is merely pretending to be transgender?

  • Cosmo
    Posted: Fri, 02/24/2017 10:32 am

    Minnivan Man.

    I know I can't explain it, but being an old man I may use it  when I'm in trouble and need a restroom desperately.  Just trying to maintain a sense of humor about this despicable issue.  

    It amazes me what our gov't wastes its time on.  We have so many serious issues, but now, because of their lack of common sense they have raised this issue to be a problem for all of us.  We are all sinners, but I don't get any special laws passed to make my sins seem better.

  • Michael Eichler
    Posted: Fri, 02/24/2017 04:03 pm

    @ Minivan Man - Though I am no proponent of transdenderism I will give it a run as I have been exposed to the issue and may grant some insight but please note it is not all incompassing or some may believe it is completely off base.

    A person who 'believes' the sex he or she is born with is incorrect is identified as transgender. A pretender is someone who makes the claim just to gain something (e.g. access, sympathy, etc.) for reasons untold but once out of view reverts to given sex. Either can cross-dress to emphazise the sex the indivdual wants to display, but it is not required. However based upon personal observed experience, people who 'believe' they are transgender usually go out of their way to cross-dress in an attempt to 'feel' more comfortable and closer to the sex identified with whereas pretenders do not necessarily think they need to do so.

    I am positive there are likely exceptions to this, however, if a person believes they are something they usually go to lengths to develop the necessary habits to bring their mental self-image to the forefront for visual effect to those around them (e.g. word cues dealing with pronouns, influence others to think as they think, etc.) and for personal reinforcement of the desired belief.

    The individual who 'believes' they are the wrong sex deserves our compassion and assistance in obtaining help, if at all possible. The pretender should be called out either personally and/or by law enforcement authorities. Unfortunately, there is no natural and definitive way to ascertain if a person is under the belief of being transgender or just pretending to be a transgender.