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Supreme Court Vacates, Remands Transgender Bathroom Case

One of the Supreme Court's most anticipated cases of the term just got a last minute cancellation. That case, Gloucester County School Board v. G.G., involved the rights of transgender students to use the bathroom that matches their gender identity. Oral arguments were scheduled for later this month, but the case was upended just two weeks ago, when the Trump administration rescinded federal protections for those students.

Now, the Supreme Court has taken a last minute pass on the dispute. In a one-sentence summary disposition, the Court vacated the Fourth Circuit's ruling in favor of Gavin Grimm, the transgender student, and remanded the case for reconsideration in light of the new administration's shifting stance on transgender student rights.

Goodbye Guidance

The dispute between Gavin Grimm and the school board of his rural Virginia county began after Grimm sought permission to use the boy's room at his school. After the board refused, Grimm sued, eventually winning a significant victory in the Fourth Circuit. There, the court ruled that a Department of Education letter on transgender student rights deserved deference under Auer v. Robbins. That guidance interpreted Title IX as requiring schools to protect transgender students from sex-based discrimination, including by allowing students to use the bathrooms that match their gender identity.

The case soon moved to the Supreme Court. But things took a sharp turn two weeks ago, when the Department of Education rescinded its earlier guidance.

Suddenly, one of the major issues at stake in the case -- how much deference to grant the DOE's interpretation of Title IX -- was largely mooted.

Goodbye Case

Both sides had urged the Court to hear the case nonetheless, addressing the proper interpretation Title IX rather than administrative law issues.

The Court, however, declined. The Supreme Court issued a brief summary disposition this morning:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

That could mark a significant reversal for Grimm. In ruling for Grimm, the Fourth Circuit included several caveats. "We agree," the court wrote, "that it has indeed been commonplace and widely accepted to separate public restrooms, locker rooms, and shower facilities on the basis of sex."

"We agree," the opinion continued, quoting the dissent, "that 'an individual has a legitimate and important interest in bodily privacy'" that may justify traditionally sex-segregated bathrooms. But "it is not apparent," the majority concluded, "that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department's interpretation of its own regulations."

With that deference largely removed from the equation, the lower courts will now have to go to the heart of the matter -- whether Grimm and students like Grimm have a right under Title IX or the Equal Protection Clause to be treated in accordance to their gender identity. That could be a harder battle for Grimm to win.

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