Is the Supreme Court ready to take on transgender rights?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains why suggestions that transgender rights are on the fast track to the Supreme Court may be premature.

It is often said, and it is quite true, that getting a case reviewed by the Supreme Court is something like a lottery, perhaps not entirely a matter of chance but certainly something that can’t be predicted with confidence.  The side that loses a case in a lower court might boldly promise, “I’m going to take this all the way to the Supreme Court!”  It is not that simple, or easy.

The Justices over many decades have developed techniques for avoiding controversies, or at least delaying the point of final resolution – even if the issue is a huge one that the public might think the court ought to take on and settle.  The court generally prefers to let lower courts try to sort things out first.  Its place is actually at the end of the line, and it generally prefers it that way.

It took a string of lower court decisions and something of a false-start appeal in a famous California case, before the Supreme Court was finally ready to decide that the Constitution protects an equal right for gay and lesbian couples to marry.  That decision just about a year ago in the case of Obergefell v. Hodges gave a strong new impetus to another civil rights campaign – the effort to promote equality for transgender people.

It is true, as a matter of historic fact, that this is not a new issue for America – there has been an active transgender rights movement for at least a generation, probably longer.  It was 14 years ago that the Transgender Law Center started up, to change law and policy as it affects transgender people, and 13 years ago that the National Center for Transgender Equality was founded, pursuing a broad agenda of equal rights.

So, by now, one might say, that movement’s turn before the Supreme Court might have arrived.  Even a casual scanning of each day’s headlines suggests that, suddenly, transgender rights have gained high new visibility on the national agenda.  The federal government and the state of North Carolina are suing each other over the issue, and eleven states have put together a lawsuit to challenge federal policy on transgender rights in the nation’s school systems.  Predictably, talk is beginning about getting the Supreme Court involved.

Earlier this week, in fact, a federal appeals court judge, declaring that “time is of the essence,” suggested that one or both sides in a prominent case over transgender rights ought to move on, promptly, to the Supreme Court.   Circuit Judge Paul V. Niemeyer put that notion into a separate opinion as his court – the U.S. Court of Appeals for the Fourth Circuit – chose not to reconsider a three-judge Circuit panel’s ruling in a school restroom case from Gloucester County High School in the town of Gloucester Courthouse, Va.

Judge Niemeyer, who dissented from that panel ruling, could have demanded that his colleagues hold a vote on whether to reconsider that decision, but he opted not to make that demand.  “The momentous nature of the issues,” he wrote, “deserves an open road to the Supreme Court to seek the court’s controlling construction of Title IX for national application.”  The facts in this particular case, he said, were straightforward, making this a clear test on the basic legal question.

That question involves the scope of Title IX of federal civil rights law, a statute that seeks to ban discrimination “on the basis of sex” in federally-funded education programs.  The legal question is whether that statute uses the word “sex” to include “gender identity,” or transgender status (generally understood to mean people who identify with a gender that differs from what it says on their birth certificates).   Judge Niemeyer is firmly persuaded that Congress did not mean to give Title IX the sweeping scope that the federal government and some courts have now given to it.   But he realizes that his is a lower court, without the capacity to decide the issue once and for all.

He made his suggestion in the case of G.G. v. Gloucester County School Board.   “G.G.” is the name given in court files to a 16-year-old junior at Gloucester County High School who was born a girl but identifies now as a boy; he and his mother sued after he was denied access to the boys’ restroom at school.  He would now be free to ask the Supreme Court to hear his case, mainly because he did not win all that he had sought in the federal appeals court, the Fourth Circuit Court.  And the county school board also could file an appeal in the Supreme Court, because its policy has been found to be a violation of Title IX.

Is this case, therefore, a perfect set-up for the Supreme Court?  It may not be.

First, the appeals court decision was not a final ruling on G.G.’s legal claim; the majority of the court panel ordered the case back to a federal trial judge, to reconsider his ruling flatly rejecting all of G.G.’s claims.

Second, the appeals court did not even make up its own mind on what Title IX means; it chose instead to accept the reasoning of the federal Department of Education.   The panel majority said it had no choice but to defer to that agency’s interpretation.

Both of those factors might well suggest to the Justices that this case is premature as a test of Title IX’s meaning.  The Supreme Court believes its authority is best exercised when there is a definitely final ruling in a lower court.  While the question of deferring to a federal agency’s interpretation is a legal issue in its own right (one that, incidentally, is now under some challenge among the Justices), that is not a straightforward test of what “sex” means in Title IX.  (The meaning of the word “sex” in other federal laws – including the workplace discrimination law, Title VII – is also at stake in the transgender rights controversy.)

Since the Supreme Court would have complete discretion over which case it might wish to take on to decide what “sex” means in federal civil rights law, it could be more willing to consider that question in a setting other than the highly emotional one of access to restrooms, especially for young people.  For those who like Judge Niemeyer believe that Congress did not intend civil rights laws to apply to transgender rights when those are not directly specified, restroom access raises profound questions of personal privacy – much more than, say, equal opportunity in the workplace.

While Judge Niemeyer may yet see the G.G. case move on to the Supreme Court, he and the nation cannot know for sure that this will be the chosen one for actual review.