One day before lawyers for a transgender teen who identifies as a boy and wants to use the boys’ bathroom at his Virginia high school are due to file their brief in the Supreme Court, the Trump administration today withdrew guidance, issued by the U.S. Department of Education in 2015 and 2016, on the use of school bathrooms and locker rooms by transgender students. In that guidance, the federal government had interpreted a 1975 regulation as requiring schools to “treat transgender students consistent with their gender identity” if they opt to separate students in school bathrooms and locker rooms based on their sex.
In Gloucester County School Board v. G.G., which is scheduled for oral argument in the Supreme Court on March 28, the U.S. Court of Appeals for the 4th Circuit had relied on the Department of Education guidance in ordering a Virginia school board to allow the teen to use the boys’ bathroom. Last summer, the justices – with Justice Stephen Breyer providing the crucial fifth vote – agreed to put that ruling on hold until the court could review the merits of the board’s challenge to the lower court’s decision.
In the “Dear Colleague” letter (a standard format used by the Department of Education to remind educational institutions of their responsibilities or inform them of new guidelines) provided this evening to the court by the government, the department criticized the earlier guidance for its failure to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” a federal civil rights law that prohibits sex discrimination in education. Moreover, the department added, the federal government believes that there must be “due regard for the primary role of the States and local school districts in establishing educational policy.”
Although the guidance has been revoked, both the school board and G.G.’s attorneys want the court to decide the case. They emphasize that – regardless of what the Department of Education’s guidance may have said or how much weight courts should accord it – the court also agreed to review whether the school board’s policy requiring students to use the bathroom that corresponds with the gender that they were assigned at birth is consistent with Title IX and the 1975 regulation interpreting that law.
The justices have a variety of options from which to choose to deal with tonight’s developments. Among other things, they could send the case back to the 4th Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral argument in the case next month, if not before.