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Some common ground on next steps in transgender bathroom case

The Gloucester County School Board and the Virginia teen known as G.G., who identifies as a boy and wants to be able to use the boys’ bathroom at Gloucester High School, don’t agree about much. But today they both told the Supreme Court that their dispute should go forward even after the federal government revoked the Department of Education guidance on which a federal appeals court had relied in ruling that the school board could not exclude transgender students like G.G. from using the common restrooms that correspond to their gender identity. The two sides are not in complete harmony, however, on what should happen next: G.G. today urged the justices to proceed full speed ahead with the case, which is currently scheduled for oral argument on March 28, while the school board suggested that the case should be put off, at least until April, to allow the federal government to weigh in. The proposed delay could also have the further benefit, from the school board’s perspective, of allowing Judge Neil Gorsuch, the president’s nominee to fill the vacancy left by the death of Justice Antonin Scalia, to participate if he is confirmed by then.

The case now before the Supreme Court began back in 2014, when the school board enacted a policy that requires students to use the restrooms and locker rooms that match their genders as assigned at birth. G.G. then went to court, arguing that the rule violates (among other things) Title IX, a federal civil rights law that prohibits sex discrimination in education. Last year a divided panel of the U.S. Court of Appeals for the 4th Circuit ruled in G.G.’s favor, relying 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.” In August 2016, five justices granted the school board’s request to put the 4th Circuit’s ruling on hold, and in October the court agreed to review the ruling on the merits.

But last week, the Trump administration issued a letter revoking the 2015 guidance. That prompted Scott Harris, the clerk of the Supreme Court, to request short briefs from both sides on the effect of the new letter. Those briefs were filed today.

Both the school board and G.G. told the court that it should still hear oral argument and decide the case on the merits. Even if the 2015 guidance is no longer in effect, they contended, the second question presented by the case is whether the board’s bathroom policy violates Title IX and the regulations that the federal government has issued pursuant to the law – a question that has nothing to do with the guidance.

The school board and G.G. disagree, however, on precisely what steps the court should take next and what the timing of the case should be going forward. The school board asked the justices to invite the U.S. solicitor general to file a brief expressing the views of the United States. “It would be unusual,” the school board told the court, “for the Court to address questions of the sort presented here without first hearing from the Solicitor General.” This is particularly true, the school board added, when last week’s letter suggests that the federal government, which supported the 2015 guidance in the lower courts, may have changed its position. To accommodate the additional briefing, the school board continued, the court should postpone oral argument at least until the April sitting. Although the board did not say so directly, such a change might allow Gorsuch – whose confirmation hearing is scheduled to begin on March 20, and whom Republicans reportedly hope to confirm before the April sitting starts – to participate in the oral argument.

G.G., on the other hand, implored the court to hear the case on its original schedule. With litigation relating to the use of public restrooms by transgender people pending around the country, he argued, the Supreme Court will inevitably have to weigh in at some point. There is no reason not to do so now, he continued – particularly when “[d]elaying resolution would have severe consequences for transgender students.”

There is no schedule for the court to indicate whether it intends to take any additional steps in response to today’s briefs. However, the justices are likely to consider the school board’s suggestion that they invite the federal government to file a brief when they meet for their private conference on Friday. An order from that conference could come as soon as Friday afternoon.

Recommended Citation: Amy Howe, Some common ground on next steps in transgender bathroom case, SCOTUSblog (Mar. 1, 2017, 7:43 PM),