Transgender bathroom case vacated and remanded

This is what I suggested [here] and [here]. The US Supreme Court has sent Gloucester County School Board v. G.G. back to the 4th Circuit after the government withdrew a "guidance" letter that the 4th Circuit had relied on. So oral arguments that were scheduled for March 28 are cancelled. The Court's order says: 

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

This is a setback for G.G., a transgender high school student whose great transgression is that he wants to use the boys' restroom.

Both parties had requested the Supreme Court to go ahead with oral arguments, but the School Board was jockeying for a delay and had urged the Court to 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."
  • March 6, 2017: The Supreme Court ordered: "The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017."

[For recent decisions and pending employment law cases, see Supreme Court Watch.]

 

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