WASHINGTON — Both sides in the Supreme Court case over transgender students' rights urged the justices on Wednesday to keep the case.
If the justices agree to proceed, a case that started out this past fall as a technical question of agency deference could become a blockbuster challenge about the scope of transgender rights under existing civil rights laws.
The Supreme Court agreed to the case last fall, and has scheduled arguments for later this month. But the Obama-era pro-transgender guidance at the center of the case is no longer in effect at the federal level — the new Trump administration withdrew that guidance.
The court had asked the parties in the case, the Gloucester County School Board and Gavin Grimm, to advise the court on how the Trump administration's move affected the case.
The Obama administration's guidance supported transgender students, concluding that sex discrimination regulations implemented to enforce Title IX of the Education Amendments of 1972 provided protections against anti-transgender discrimination in schools.
In February, the Trump administration, in new guidance, withdrew the Obama-era guidance without taking a position on whether the federal law provides protections for transgender students.
The appeals court, which sided with Grimm, found in 2016 that the Title IX regulations are ambiguous on the issue, meaning the Obama-era guidance was allowed if it was a reasonable interpretation. The court found it was, so then deferred to that guidance in finding that Gloucester's policy that limits students to using restrooms that match their "biological sex" should be enjoined — a ruling more about federal agency authority, ultimately, than transgender rights.
With the guidance gone, however, the underlying question remains: Should Title IX's sex discrimination ban be read to provide protections for transgender people?
When the Supreme Court agreed to hear the case, it took up two questions. The first related to the guidance and deference to the guidance — called Auer deference. The second, pointed to by lawyers for Gloucester and Grimm in Wednesday's letter, was more broad.
It asks "whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must 'generally treat transgender students consistent with their gender identity,' should be given effect."
In short: Does Title IX require schools to respect students' gender identity?
That second question has even larger implications beyond schools, as other agencies — including, most notably, the Equal Employment Opportunity Commission — have interpreted the sex discrimination bans in other laws to include bans on anti-transgender discrimination as well.
The lawyers for both Grimm and the school board want the Supreme Court to answer that second question.
"In the School Board’s view, the withdrawal of th[e Obama-era guidance] should not prevent the Court from hearing argument and resolving the questions presented," the school board's lawyer, Kyle Duncan of Schaerr Duncan LLC, wrote. "That is particularly evident as to the second question, which addresses whether, properly interpreted, Title IX and its regulations require access to sex- separated facilities based on gender identity."
Similarly, Grimm's lawyer, Joshua Block with the ACLU, wrote, "That question has been litigated widely in the lower courts; it is fairly encompassed in petitioner’s second question presented; and it has been fully briefed before this Court."
The court doesn't need to keep the case. It could — as suggested as a final alternative by the school board's lawyer — vacate the appeals court's decision in favor of Grimm and send the case back to that court to address the underlying Title IX question.
Even if the justices do keep the case, however, the school board asked for a delay. They asked the court to seek input from the new administration on the underlying Title IX question — which the administration declined to do in its February guidance. "It would be unusual for the Court to address questions of the sort presented here without first hearing from the Solicitor General," Duncan wrote.
Additionally, due to the additional briefing that would require, the school board asked for the arguments to be delayed from their current March 28 date "until at least the April sitting."
If pushed beyond the April sitting, the case likely wouldn't be heard until the court's next term, which doesn't begin until October — and barring an unexpected development will include its ninth member, Trump nominee Neil Gorsuch.