The US Supreme Court has extended the briefing schedule in the transgender bathroom case – Gloucester County School Board v. G.G. [Order text] [Briefs] – pushing oral argument into March, and giving the incoming Trump administration time to change the government's position on the issue. The extension might even result in a ninth Justice being confirmed before oral arguments.
Here's the new schedule:
- School Board's brief: January 3.
- President Trump's inauguration: January 20.
- G.G.'s brief: February 23.
- Amicus brief by the government: March 2.
- Oral argument: March 28.
Here's the significance:
The incoming administration will have time to decide whether to change the government's policy. Current policy is that in schools receiving federal funding transgender students can use the restroom corresponding to their current gender identity rather than the identity assigned at birth. This policy is not spelled out in the relevant statute (Title IX bars discrimination "on the basis of sex") or in federal regulations, but is stated in policy letters and guidances issued by the Department of Education. This can all be changed without going through formal notice-and-hearing rulemaking procedures. The new government will have from January 20 until March 2 to change policy and file an amicus brief. Update: The government withdrew the policy on February 22.
A policy change would be important because the 4th Circuit [Opinion text] relied on current policy to reach its decision in favor of G.G. But a change would not automatically end the case because G.G. is also arguing that the statute and regulations by themselves give him the right he seeks.
Will President Trump want to change this policy? I think so. It's not that he is anti-transgender. It's that he would favor leaving bathroom privacy issues to state and local governments, and keeping the federal government out of the issue altogether.
A change in government policy would allow the Court to take itself off the hook (for now), as it could logically send the case back to the 4th Circuit for reconsideration in light of the policy change. Or the Court could go ahead and decide the case based on the statue and regulations alone.
Extending the briefing schedule extends the date for oral argument. Let's imagine oral argument is set for April 20. [01/03/2017 Update: Oral argument is set for March 28.] The Trump administration and the Senate would have three months to nominate and confirm an Associate Justice. Conventional wisdom is that a Trump appointee would side with the School Board. But we don't know who will be appointed, so this is pure guesswork.
- Amy Howe at SCOTUSblog: Court extends briefing schedule in transgender case
- Lyle Denniston at Lyle Denniston Law News: Changing schedule for transgender case
Web site for Ross Runkel, Arbitrator & Mediator: https://www.rossrunkel.com/