Supreme Court steps into transgender dispute

The Supreme Court on Friday afternoon stepped into the nationwide controversy over the rights of transgender people – in particular, high school students – but gave itself the option of ruling very narrowly.

The Justices said they will consider the appeal of a county school board in Virginia, challenging a federal appeals court ruling that gave a 17-year-old transgender boy a right to use the school restroom that conforms to his gender identity. That lower court decision has been on hold, and that will be the situation until the case is decided – probably not until near the end of the court’s term.

Link: Read the Court’s order

Specifically, the order grants review of two questions. One of those is the legality of the federal government’s view that the federal law banning sex bias in federally funded education programs also forbids discrimination based on gender identity. If the final decision does settle that issue, it could be the court’s first major ruling on the transgender rights controversy – the latest dispute over civil rights.

But the second question to be reviewed, if the decision goes against the government position, could make it unlikely that the core question on transgender rights would be decided in this specific case. That other question tests whether the government announced its policy on transgender rights in the procedurally proper way. A ruling that the policy declaration came in the wrong form would send this case back to the federal appeals court, which had relied upon that very declaration in ruling in favor of the transgender boy’s rights.

That scenario would, in effect, postpone a final reckoning in the Supreme Court on the transgender rights issue itself.

The case is Gloucester County School Board v. G.G. “G.G.” is a reference in the court file to Gavin Grimm, the youth who was assigned female gender at birth but has come to accept that he is a male. He is in his senior year at Gloucester High School in Gloucester Court House, Va. He won his case in the U.S. Court of Appeals for the Fourth Circuit, but the Supreme Court put that ruling on hold on August 3 until it had a chance to decide whether it would grant review of the case. That is what it did on Friday afternoon.

When the Fourth Circuit Court ruled on the case, it did not express its own views on what the federal law – Title IX – means in the phrase that outlaws discrimination “based on sex.” But it said it felt a duty to accept the federal Education Department’s view that the phrase includes “gender identity.” That, it noted, was an interpretation by that Department as to what its own agency regulations on Title IX mean. A court is generally required to accept an agency’s interpretation of its own regulations, if those are ambiguous. That is required by a 1997 decision in the case of Auer v. Robbins.

In the school board’s appeal to the Supreme Court, it asked the court to decide three questions. The first of those was whether the Auer decision should be overruled – as three of the current Justices have suggested in recent years. The court’s order on Friday did not order review of that question, so it will be bypassed in this case.

The second question the school board posed was whether a federal agency is entitled to the courts’ deference if it announces a change in its policy in a form that does not have binding legal force. The school board said that was what happened in the G.G. case – the policy on transgender access to school restrooms was announced in a letter while that case was unfolding in lower courts. The Education Department should not be entitled to deference on that mode of policymaking, the board contended.

A ruling in favor of the board on that point would undermine the basis of the Fourth Circuit Court’s ruling upholding that policy in this case.

The unusual scope of the Friday order implied that it was something of a compromise: some Justices were willing to hear the agency deference question, others the question about transgender equality. But, if there is no ninth Justice when the case is decided, it is not beyond the possible that the court would split 4-to-4 on both of the issues. The result of that would be to uphold the Fourth Circuit Court ruling in favor of G.G.

No doubt the transgender rights issue would return to the court in a future case.

The Gloucester County case was one of five new cases that the court agreed to review during its current term. They are likely to come up for hearings in February, at the earliest. Whether the court will have nine Justices by that time is still unclear because of the impasse between GOP leaders in the Senate and the Obama White House over the existing vacancy created by the death of Justice Antonin Scalia in February.

Among other newly granted cases, the Justices will be reviewing, in a North Carolina case, the question of whether it violates the First Amendment for a state to make it a crime for a person convicted of sex crimes to make use of any social media site, such as Facebook or YouTube, that is known to also be used by minors. That case is Packingham v. North Carolina.

The court also took on the case of Esquivel-Quintana v. Lynch to clarify when a conviction under state law for having sex with a minor qualifies as the kind of crime that leads to mandatory deportation of a non-citizen living in the U.S.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.