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Both Sides Want the Transgender Bathroom Case to Go Ahead, but How Quickly?

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By Casey C. Sullivan, Esq. on March 03, 2017 12:14 PM

President Trump reversed federal protections for transgender students last week, abandoning an Obama-era policy that read Title IX as protecting transgender students' right to use the bathroom that comports with their gender identity.

That now-renounced policy was at the center of Gloucester County School Board v. G.G., a high-profile Supreme Court case scheduled for arguments later this month. Now, with significant questions about how the Court will move forward, both sides are urging the Court to hear the case despite the administration's changes, though one wants the justices to move a bit more slowly.

What's Next for the Gloucester County Case?

The dispute at the center of Gloucester County arose after a transgender student, Gavin Grimm, sought to use the boy's bathroom at his school. After initially acquiescing, the school reversed, leading Grimm to sue. Grimm eventually won in the Fourth Circuit, with the court ruling that it must defer to the Department of Education's interpretation of Title IX.

Then the new administration jettisoned that interpretation. Suddenly, one of the central issues in the case, how much deference to give the DOE's interpretation, was at risk of becoming moot.

Last week, the Court asked both parties to submit their views on how to proceed. Unsurprisingly, both sides wanted the Court to hear the case nonetheless, addressing the heart of the matter: whether transgender students were, as a matter of law, entitled to be treated in accordance with their gender identity, including when it came to bathrooms.

Decide on the Merits, Both Parties Urge

Gavin Grimm's ACLU lawyers urged the Court to weigh in on the proper interpretation of Title IX, administrative law questions be damned. That question, Grimm's attorneys explain, is "more urgent than ever," given the administration's shift and the conflicting interpretations of Title IX in the lower courts. They write:

Delaying resolution of that question will only lead to further harm, confusion, and protracted litigation for transgender students and school districts across the country. Another few years of needless litigation would not help clarify the legal question facing the Court, and it would impose enormous costs on individual students until the Court provides additional clarity.

The school board, too, said that the DOE's reversal should not prevent the Court from deciding the case. Like Grimm, they urged the Court to address whether the earlier interpretation of Title IX was correct.

They went even further though, asking the Court to retain the administrative law question. The fact that the DOE interpretation could be so quickly and unilaterally rescinded "underscores why it should not have received 'controlling' deference in the first place," the school board argues.

Waiting for Gorsuch

But, unlike Grimm, the school board asked the Court to postpone oral arguments, in order to allow briefing from Trump's solicitor general.

But the current administration has yet to appoint a new solicitor general (a position that's proving surprisingly difficult to fill), which means that briefing may be awhile coming. As a result, oral arguments "should be postponed until at least the April sitting," the school board writes.

Such a delay may, if the Court agrees to it, could give the school board an important advantage -- namely, Justice Gorsuch. If Neil Gorsuch, Trump's Supreme Court nominee, is confirmed by the Senate before April, he could be on the Court for the case, and would be expected to vote in the school board's favor. Gorsuch's confirmation hearings are currently scheduled for March 20th.

The Supreme Court hasn't yet given any indication on when, or how, it will decide to move forward in the case.

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