Last week a Virginia transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom at his local high school filed a brief urging the Supreme Court to stay out of the dispute. The brief was filed just fifteen days – half of the thirty days available to him – after the Gloucester County School Board asked the Supreme Court to grant certiorari to review a federal appeals court’s decision in the student’s favor. The early filing means that the Justices will consider the case at their private conference on October 14.

In June, a federal trial court ordered the school board to permit the student, “G.G.”, to use the boys’ bathrooms at Gloucester High School when the 2016-2017 academic year began. But the Supreme Court stepped in and put that ruling on hold, over the protests of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, to give the school board time to file a petition seeking review on the merits, which it did on August 29.

In his brief opposing review, “G.G.” made three main points. First, he emphasized that the doctrine known as “Auer deference” that underlies the federal policy granting him access to the boys’ restroom – the idea that courts should defer to an agency’s interpretation of its own regulations – is well-settled. Only three Justices (and therefore well short of a majority) have suggested that the doctrine should be overruled or reconsidered, he observed.

Second, he contended, even if there is (as the school board suggests) actually any disagreement among the lower courts on the question whether Auer deference applies to an agency’s unpublished opinion letters or interpretations of a regulation that are announced during a dispute, there is still no reason for the Court to intervene in this case. He explained that the Department of Education’s interpretation “pre-dated the litigation and was articulated, not just in an opinion letter, but also in a statement of interest and” a friend-of-the-court brief.

Third, he argued, there is no need for the Court to review his case to take on the question whether a policy that bars transgender students from using bathrooms that match their gender identity is permitted by Title IX, the federal law that bars sex discrimination in education. His case, he asserted, would be “the wrong case at the wrong time” for the Court to act, both because there is no disagreement among the lower courts on this question and there has not yet been a final ruling in his case.

If the Justices do indeed consider G.G.’s case at their October 14 conference, they could theoretically announce whether they will grant review as soon as that afternoon. However, in recent Terms, the Court has generally only granted review after considering cases at more than one conference. If the Court continues to adhere to that practice, a grant of review might not be announced until October 28, the next conference after the October 14 conference. By contrast, if the Court were to deny review, that announcement could come as soon as Monday, October 17.