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How Will the Court Respond to Trump's New Transgender Bathroom Policy?

President Trump rescinded Obama-era protections for transgender students on Wednesday. Those guidelines, now tossed, had interpreted civil rights laws forbidding discrimination 'on the basis of sex' as extending to gender identity. As a result, schools were told to allow transgender students to use the bathroom that matched their gender identity, or risk a loss of federal funding.

In abandoning that position, the Trump administration did not just impact the lives of transgender students, he also threw a wrench into the works of a high-profile case the Court is scheduled to hear just over a month from now. Now, the Court is asking how that dispute, Gloucester County School Board v. G.G., should proceed.

A Dispute Over Bathrooms and Judicial Deference

The Gloucester County case arose after a student in rural Virginia, Gavin Grimm, asked for permission to use the boy's bathroom. Grimm, a transgender teenager who was born female but lives and identifies as a man, was initially permitted to use the facilities that suited his gender identity, until a public backlash changed the school's mind. The school then gave Grimm the choice of doing his business in the girl's room or a converted broom closet.

Grimm sued, winning in the Fourth Circuit, with the Supreme Court subsequently granting cert. At the center of the dispute are important civil rights issues that could put the Supreme Court at the forefront of transgender acceptance -- or set a growing transgender rights movement back a few years.

But the questions presented are largely about administrative law: namely, what sort of deference should be given to the Department of Education's interpretation of Title IX. With that interpretation now rescinded, the case has been turned on its head.

Court Asks the Parties to Weigh In

So, what's the Court to do? That's exactly that they'd like to know.

On Thursday evening, the Court asked both sides of the dispute to submit their views on how the case should proceed in light of the DOE's reversal on transgender bathroom access. The parties have until next Wednesday to respond.

Both Grimm and the school board are likely to urge the Court to hear the dispute despite the government's switch. "This is an incredibly urgent issue for Gavin and these other kids across the country," said Joshua Block, the ACLU attorney representing Grimm. The government's new interpretation of Title IX "only underscores the need for the Supreme Court to bring some clarity here," he added.

The school board, too, has made similar arguments. In its merits brief filed in early January, the board acknowledged that the Trump administration might rescind the guidance at the center of the case.

Should that happen, the board argued, the Court can and should decide the underlying question, whether the DOE's interpretation of Title IX was correct, and leave the administrative law to the side. That would avoid "needless additional litigation in the lower courts."

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