Justices send transgender bathroom case back to lower courts, no action on same-sex marriage cake case

The Supreme Court may eventually hear the case of a transgender teen who wants to be able to use the boys’ bathrooms at his Virginia high school, but it will not do so this term. In the wake of a February 22, 2017, document from the U.S. Departments of Education and Justice that revoked the Obama-era guidance on which a lower court had relied to rule in the teen’s favor, the justices today sent the case back to the U.S. Court of Appeals for the 4th Circuit for reconsideration in light of the new guidance.

The 4th Circuit’s decision had relied heavily on a 2015 opinion letter from the Department of Education’s Office of Civil Rights which concluded that, if schools opt to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.” But, on February 22, the Trump administration revoked that guidance. In letter briefs filed at the court’s request last week, both the Gloucester County School Board and G.G., as the student is known, told the court to forge ahead with the case. They argued that, although the first question that the court had agreed to review involved what deference, if any, should be given to the Obama-era guidance, the second question before the justices was G.G.’s contention that the board’s bathroom policy violates Title IX, a federal law prohibiting discrimination in schools, and the regulations that the federal government has issued pursuant to the law – a question that is unrelated to the guidance.

Even when both sides agree that a case should go forward, however, the justices often prefer not to weigh in on a question that a lower court has not fully vetted. And so today, in a one-sentence order, the court passed the case back to the 4th Circuit for further proceedings, which presumably will include a closer look at the question of whether the school board’s policy violates Title IX.

Although G.G. had prevailed in the 4th Circuit and a federal district court had issued an injunction that would allow him to use the boys’ bathrooms until the case could be resolved on the merits, the Supreme Court over the summer put the injunction on hold. And today’s ruling means that the school need not provide G.G. access to the boys’ bathroom. The court of appeals’ decision has been vacated by the Supreme Court, so there is no ruling on which the district court would base an injunction.

The justices once again did not act on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a challenge by Jack Phillips, a Colorado man who describes himself as a “cake artist” and owns a custom-cake business with his wife. Phillips and the business argue that the state’s public accommodations law violates the First Amendment when it requires him to express himself in a way that violates his sincerely held religious beliefs – here, by making custom wedding cakes to celebrate same-sex weddings. Nearly three years ago, the justices declined to review a similar decision by the New Mexico Supreme Court holding that a photography studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony. The owners of the studio argued that taking photographs of such ceremonies would violate their religious beliefs.

The justices did not add any new cases to their docket for next term. They issued an unsigned opinion in the case of a Nevada death-row inmate who alleged that the judge in his state trial was biased; the case now goes back to the state courts for new proceedings. And two justices issued public statements regarding the court’s denial of review in three cases: Justice Clarence Thomas wrote a separate opinion regarding the court’s announcement that it would not review a Texas civil forfeiture case, and he dissented from the denial of review in a challenge to the scope of Congress’ authority to regulate foreign commerce; Justice Sonia Sotomayor concurred in the denial of review in a Florida man’s challenge to his conviction for threatening to “blow up this whole [expletive] world.” Finally, the justices asked the federal government to file a brief conveying its views on Loomis v. Wisconsin, a due process challenge to the use of risk-assessment results at sentencing.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in Gloucester County School Board v. G.G. However, I am not affiliated with the firm.]

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