Final update: Transgender bathroom case vacated and remanded
Both parties in Gloucester County School Board v. G.G. have requested the Supreme Court to hold oral arguments, but the School Board is jockeying for a delay and thinks the Court should get a brief from the government before holding oral arguments. Here's a sketch of recent developments:
- April 19, 2016: 4th Circuit held [opinion text] that G.G., a transgender high school student, must be allowed to use the boys' restrooms. The 4th Circuit relied on an interpretation of Title IX and its implementing regulations reflected in administrative guidance issued by the US Department of Education in 2015 and 2016.
- June 23, 2016: District Court issued a preliminary injunction against the School Board.
- August 3, 2016: Supreme Court issued a stay of the District Court's injunction.
- October 28, 2016: Supreme Court granted writ of certiorari to review 4th Circuit's judgment.
- February 3, 2017: Case set for oral argument on March 28.
- February 22, 2017: The Department of Education and Justice Department withdrew the guidance documents that the 4th Circuit had relied on. [text]
- February 23, 2017: Supreme Court requested the parties' "views on how this case should proceed in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017."
- March 1, 2017: The parties submitted letters to the Supreme Court with their suggestions on how to proceed:
- G.G. recommended [text] going ahead with the March 28 arguments: "The new 'Dear Colleague' letter abstains from providing any guidance with respect to 34 C.F.R. § 106.33 and makes resolution of Question Two even more urgent. That question has been fully developed in the lower courts, is fully briefed by the parties and amici before this Court, and is appropriate for resolution now. Delaying resolution would provide no benefit to the Court and would needlessly prolong harm to transgender students across the country awaiting this Court’s decision."
- The School Board made three suggestions [text]: (1) Ask the US Solicitor General for the current views of the United States. (2) Postpone oral arguments until the new briefing is completed. (3) "[I]f the Court chooses not to resolve either question presented in light of the withdrawn documents, the Court should vacate the decisions below and remand for further proceedings."
It seems likely that the School Board's idea of delay and further briefing would throw the case over into next fall. Although unsaid in the Board's letter, the Court should be at full strength by then.
My view is that the Court should cancel arguments, vacate the 4th Circuit's judgment, and remand. Technically, of course, one issue presented in the petition for certiorari deals with Title IX by itself without the gloss of the earlier "guidance" letters. But the 4th Circuit's reasoning was dependent on those guidances, which are now gone and not replaced by anything else. So the whole reasoning process is different now. It's a different legal landscape. Let the lower courts work on this.