The Supreme Court sent a landmark trans-rights case back to a lower court Monday, after the Trump administration withdrew Obama-era guidance allowing trans students to use the bathroom corresponding to their gender identity in public schools.
The order ensures there will not be a major ruling in a trans-rights case before the Court adjourns in June.
The justices were scheduled to hear arguments in Gloucester County School Board v. G.G. March 28. Monday’s order from the Court asks the 4th U.S. Circuit Court of Appeals to rehear the case in light of the guidance document issued by the U.S. Departments of Justice and Education Feb. 22. The guidance advised schools that an Obama administration document on the issue had been rescinded.
The case was occasioned when a 17-year-old student in the Gloucester County Public Schools who is transgender sought to begin using the men’s bathroom. The student was born female, but identifies as male. Gloucester Country schools require transgender students to use alternative bathrooms. The student is represented by the ACLU.
“Nothing about today’s action changes the meaning of the law,” said Joshua Block, lead counsel for the student at the ACLU. “Title IX and the Constitution protect [the student] and other transgender students from discrimination.”
“This is a detour, not the end of the road,” he added.
The 4th Circuit ruled for the student, finding that the courts must defer to the Obama Department of Education guidelines which require schools to treat students consistent to their gender identity in order to comply with Title IX, the federal law prohibiting sex discrimination in public education. The ACLU also argued that the district’s policy violates the Constitution’s equal protection clause, and would violate Title IX even in the absence of federal guidance to that effect.
In issuing the guidance, the Obama Education Department did not follow the legally-proscribed process for changing regulations. As such, the guidance did not have the full force of law. The Education Department argued the guidance simply informed school districts across the country of their reading of Title IX requirements as concerns the transgender bathroom issue.
When the Supreme Court agreed to hear the case, they asked the parties to argue two questions: first, whether the Obama guidance was entitled to deference by the courts, and second, whether Title IX requires public schools to allow trans students to use the bathroom of their choice, regardless of DOE’s view.
Since the Trump administration has since withdrawn the Obama-era guidelines, the first question was essentially mooted. However, the justices could still have heard arguments on the second question and issued a ruling definitively settling the ongoing controversy surrounding trans students and public school bathrooms.
The Court’s decision to send the case back to the 4th Circuit for reconsideration likely reflects their recalcitrance to decide a case of this consequence without a full bench. As the case will almost certainly return to the high court, odds are high that the decision will be reviewed on the merits after the confirmation of a ninth justice.