The Supreme Court said Friday that it will hold oral arguments in a closely watched transgender rights case on March 28. Justice-nominee Neil Gorsuch likely won’t be there to hear them.
That’s probably good news for Virginia teen Gavin Grimm, the transgender student at the heart of the case.
Gorsuch could be confirmed to the Supreme Court before the Senate’s Easter recess in mid-April, but even that’s an optimistic estimate from Judiciary Committee Chairman Chuck Grassley (R-Iowa). Democrats have indicated they’ll make it hard for Republicans to move him through the Senate that quickly.
One thing we know about Gorsuch is that he thinks courts are too hesitant to second-guess the judgment of federal agencies. That means he would be a likely vote in favor of school authorities in the case of Gloucester County School Board v. G.G.
It gets a bit tricky here. The case, broadly speaking, is about transgender rights. But the specific issue before the Supreme Court is about how much deference courts should give to federal agencies’ interpretation of their own regulations.
The Gloucester County School Board is challenging the Education Department’s guidance on how public schools should accommodate transgender students’ choice of bathroom, which the department based on Title IX, a law that prohibits sex discrimination by schools that receive federal funding.
Title IX does not mention gender identity explicitly. But the Obama Education Department determined that the definition of sex under Title XI includes gender identity and therefore that Title XI requires schools to treat transgender students “consistent with their gender identity.” In short, Grimm’s school violated the law when it barred him from using the restroom that all the other boys in his high school use.
The appeals court that ruled for Grimm followed the Education Department’s judgment.
The school board, on the other hand, has described this whole line of reasoning as “preposterous.”
In cases involving federal agencies, the justices often ask the federal government to weigh in. However, the new administration has yet to offer its views on the case, and President Donald Trump may well withdraw the transgender guidance issued under his predecessor.
Even then, the Supreme Court could still decide the case. In fact, the school urged the court to do just that in a brief filed in January, days before Trump took office.
Legal challenges to the transgender guidance have also been launched in parts of the country more conservative than Virginia. A federal judge in Texas last year blocked the guidance nationwide. So kids beyond Grimm are waiting for the Supreme Court to rule.
But without Gorsuch on the bench, there’s a good chance the justices will split 4-to-4 in the case. While the dispute would set no national precedent, Grimm would prevail because he won in the lower court.
He’s expected to graduate from high school later this year.