SCOTUS punts on transgender case. Now what????

Last Monday the Supreme Court punted the transgender student case back to the 4th Circuit.  The official legalese for this is that SCOTUS “vacated” the decision of the 4th Circuit and sent it back to that court for further consideration.  Instantly, the speculation began as to the motivation behind this.

I think it’s pretty simple.  The Trump Administration has taken a wrecking ball to the foundation of the 4th Circuit’s decision. So the Supreme Court wants that court to take another look at this issue.  Let’s review how we got here.

The 4th Circuit ruled that a school district in Virginia had to permit Gavin Grimm to use the boys’ bathroom, despite school policy that limited transgender students to the bathroom corresponding to birth sex, or a private, gender neutral facility.  In other words, Gavin, who was born female, would have to use the girls’ room or a private, neutral facility.  Gavin, a transgender male, was not OK with this.  He sued, claiming that the policy violated Title IX.

The 4th Circuit agreed with Gavin, but the primary reason for that was the court’s deference to the interpretation of the law by the Department of Education and Department of Justice. The court did not explicitly rule on what it thinks Title IX requires. Instead, it cited the legal principle that the agency that enforces the law is entitled to a certain level of deference.  Thus we might paraphrase the court’s decision as “we’re not sure what Title IX requires, but this is what the DOE and DOJ  say it means, and we don’t think they are way off base, so we’ll defer to their interpretation.”

Then the case went to SCOTUS.  Meanwhile, we had a little election.   The new Trump DOE and DOJ withdrew the guidance from the Obama Administration, thus destroying the foundation of the 4th Circuit’s decision.

So SCOTUS has sent the case back to the 4th Circuit, which will now have to tell us what it thinks Title IX and the U.S. Constitution require when it comes to bathroom usage by transgender students.  This is not surprising, nor does it suggest how SCOTUS will eventually rule on this matter.  Whether this case or another one, the issue of transgender use of bathrooms seems inevitably headed for a SCOTUS decision.

Stay tuned, folks.


 File this one under: TRANSGENDER STUDENTS

Tomorrow: It’s Toolbox Tuesday!! We’ll talk about the “45-day” rule.