Today the Supreme Court announced a new briefing schedule for Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be able to use the boys’ bathroom at his Virginia high school. The revised schedule extends the time for each side to file its main merits brief by at least a month. Under the original schedule prescribed by the court’s rules, the main merits brief for the Gloucester County School Board, which has asked the justices to reverse a lower-court ruling ordering the board to allow the student to use the boys’ bathroom, would have been due on December 12, with the brief for G.G., as the student is known in the Supreme Court litigation, coming 30 days later, on January 11. But the school board’s brief will now be due on January 3, with G.G.’s brief following on February 23.
The extended schedule has at least two consequences for the case. First, although the case would likely have been slated for oral argument in the court’s February sitting under the original briefing schedule, under the revised schedule it would not be slated for oral argument until the court’s March sitting (which begins on March 20) or possibly even the April sitting (which begins on April 17) – increasing the chances that a ninth justice may have taken the bench by the time the case is argued.
Second, the schedule change also means that the federal government’s position in the case will be determined by the Trump, rather than Obama, administration. Deference to the Obama administration’s interpretation of federal law has been a central feature of G.G.’s argument, and it was the basis for the lower court’s ruling in G.G.’s favor. The Trump administration will not take office in time to file a brief supporting the school board, but it could nonetheless reverse course before G.G. files its brief. Such a change could substantially alter the arguments that G.G. makes and the justices consider. Indeed, if the Trump administration does rescind the existing Department of Education letter or issue its own guidance on the question, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance.
(The blog is grateful to Lyle Denniston for flagging this change to the briefing schedule for us.)