Final update: Transgender bathroom case vacated and remanded
The government has withdrawn its prior "guidance" that said school districts should “treat transgender students consistent with their gender identity.” That prior guidance was the underpinning of the 4th Circuit's decision that G.G., a transgender student, must be allowed to use the boys' restrooms.
Gloucester County School Board v. G.G. is the case in which the US Supreme Court has agreed to review the 4th Circuit's judgment, and is set for argument on March 28.
On Thursday the Court asked the parties to advise the Court on how to proceed. The docket entry says:
Request from the Clerk that the parties submit their 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. The parties' views should be in the form of letters delivered to the Court and served upon counsel by 2:00 p.m. on Wednesday, March 1, 2017.
I think there is little doubt as to how the parties will respond. My predictions:
G.G. will say to plow ahead because G.G. is arguing that he should win under the language in Title IX – with or without the previous guidance. Also, the Court granted certiorari on the issue without any dependence on the government's former guidance.
The School Board will urge that oral arguments be cancelled, that the 4th Circuit's judgment be vacated, and the case be remanded to the 4th Circuit for further proceedings in light of the change in guidance.
There seems to be a high probability that the Court will remand the case without holding oral arguments. The 4th Circuit's judgment was dependent on a guidance that no longer exists, so that makes the case pretty messy at this point. Also, this hot-button issue probably should be heard by a nine-Justice Court.