The Supreme Court decided today not to hear the case of a transgender teen who wants to be able to use the boys’ bathrooms at his Virginia high school this term, but it may do so in the future. In the meantime, it sent the case back to the lower court, the US Court of Appeals for the Fourth Circuit, following new guidance from the US Departments of Education and Justice, SCOTUS Blog.com reports.
The 4th Circuit’s decision had relied heavily on a 2015 opinion letter from the Department of Education’s Office of Civil Rights which concluded that, if schools opt to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.” But, on February 22, the Trump administration revoked that guidance. In letter briefs filed at the court’s request last week, both the Gloucester County School Board and G.G., as the student is known, told the court to forge ahead with the case. They argued that, although the first question that the court had agreed to review involved what deference, if any, should be given to the Obama-era guidance, the second question before the justices was G.G.’s contention that the board’s bathroom policy violates Title IX, a federal law prohibiting discrimination in schools, and the regulations that the federal government has issued pursuant to the law—a question that is unrelated to the guidance.
That is, the main question before the Supreme Court was whether the US Department of Education, under President Barack Obama, had overstepped its authority in telling schools what Congress meant when it passed Title IX in the 60s, referring to protection against discrimination based on “sex.” If the Supreme Court had found such guidance unlawful in light of the executive branch’s Constitutional duties, the Court would have revoked the guidance. Since President Donald Trump just did that, the main question in the appeal is moot.
But the other question, as to the interpretation of the word “sex” in Title IX, is left unanswered by the Supreme Court, although the case could come back onto the docket after the Fourth Circuit reviews it.
“Thousands of transgender students across the country will have to wait even longer for a final decision from our nation’s highest court affirming their basic rights,” the New York Times quoted Sarah Warbelow, the legal director of the Human Rights Campaign, as saying.
But people who opposed the original guidance say it fails many students. “The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” the paper quoted Kerri Kupec, a lawyer with Alliance Defending Freedom, a conservative Christian group, as saying.
I don’t really know what’s right with regard to transgender students using bathrooms and locker rooms, but the American Civil Liberties Union supports a student’s “right” to use the bathroom, locker room, or changing area according to his or her “gender identity,” even if that differs from the child’s “sex,” as defined by his or her karyotype or scientific genetic make-up.
Title IX, as passed by Congress, protects students against discrimination based on their “sex,” which to a biologist has a very specific meaning rooted in the science of genetics. But at the same time, discrimination against students doesn’t make good policy from a leadership perspective, and students should be protected from discrimination in all forms based on any characteristic or disability they may have. In many cases, the condition isn’t under the student’s control, such as skin color, and in a few cases, it is, such as with religion or political affiliation. I don’t want kids to be discriminated against based on any of these characteristics, but I don’t know if the executive branch overstepped its authority by “interpreting” as opposed to “enforcing” the law.
And it will be a while before I find out what the Supreme Court thinks about this question, although this may not have been the case to put up as a precedent. Or, Congress could pass a new law, more clearly defining the scope of discrimination protection based on our updated understanding of gender identity. But I think that is nothing more than wishful thinking.