Both sides in the Supreme Court case that would decide how public schools must accommodate transgender students urged the justices Wednesday to move forward with the case, saying schools and students need an answer.
Lawyers for the school board of Gloucester County, Va., however, suggested that the court first seek a definitive declaration from the Trump administration about how it sees the case — a step that could delay its consideration until a new justice is confirmed.
The court is scheduled to hear the case of 17-year-old Gavin Grimm on March 28. Grimm, a student at Gloucester High School, says federal laws provide him the right to use the boys’ bathroom, which matches his gender identity. Grimm, now a senior, began the transition to living as a boy in his freshman year.
The U.S. Court of Appeals for the 4th Circuit in Richmond agreed with Grimm, deferring to Obama administration guidance that Title IX’s protections based on sex include gender identity. But the Trump administration last week rescinded that guidance, and said it was still studying the question.
Because of that action, the Supreme Court asked lawyers for Grimm and for the school board for views on how it should proceed.
Grimm, represented by Joshua Block of the American Civil Liberties Union, said other lower courts have examined the Title IX question, and the Supreme Court will “inevitably” have to be the final arbiter.
“Delaying resolution of that question will only lead to further harm, confusion, and protracted litigation for transgender students and school districts across the country,” Block wrote in his letter to the court.
“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.”
On that point, Gloucester County agreed. “Resolution by this court of that issue will save the parties — as well as public and private parties involved in similar disputes throughout the nation — enormous litigation costs as well as needless and divisive political controversy,” wrote Kyle Duncan, who represents the school board.
But Duncan told the court it should seek the views of the Trump administration, represented at the Supreme Court by the solicitor general. “It would be unusual for the court to address questions of the sort presented here without first hearing from the solicitor general,” he wrote.
He noted that that would cause a delay. Trump has not nominated a solicitor general, and Deputy Solicitor General Noel Francisco has recused himself because of past legal work on the issue by his former law firm.
It would, of course, be advantageous to the school board to wait. If the Trump administration weighed in, it would almost certainly be on the board’s behalf. And by waiting, the court could have a new member. Trump has nominated Judge Neil Gorsuch for the seat of the late Justice Antonin Scalia. The conservative Gorsuch might represent the winning vote on a divided court.
A 4-to-4 tie, on the other hand, would keep the 4th Circuit’s ruling for Grimm in place, without setting a national precedent. The court completed oral arguments in April.
After reading Duncan’s letter, Block said in an email that there was no reason to delay.
“The court should move forward with oral argument as scheduled,” Block wrote in response to a request. “As we explain in our letter, for transgender students across the country, this is an urgent issue — and under the new administration those students are more vulnerable than ever.”