Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at how a divided Supreme Court could accelerate the arrival of a case before the Justices about transgender students.
Less than two weeks after a 4-to-4 split in the Supreme Court left undisturbed a nationwide order against President Obama’s broad change of immigration policy, Texas and other states aligned with it are making use of that outcome to try to block – all across the country – the Obama administration’s new policy to protect the in-school rights of transgender students.
That maneuver, running directly contrary to the administration’s own new attempt to enforce its transgender policy against the state of North Carolina, illustrates how a tied ruling by the Supreme Court that ordinarily has only isolated effect can have a wider influence.
The controversy over transgender students’ rights to equality while at school – focusing for now on access to restrooms but with much more significant legal meaning -- is spreading very rapidly and, already, one of the cases is about to reach the Supreme Court, maybe tomorrow.
The pace of these developments in federal courts has been quickened by the fact that cases are likely to be decided before actual, full-scale trials but still resulting in temporary orders that do bring out fully the arguments on both sides.
It is unclear how deeply the Supreme Court will choose to get involved at this point. But the Justices’ recent experience with the federal government’s ambitious immigration policy shows that they will not necessarily wait for a controversy to play out entirely in lower courts before they step in.
Led by Texas, a group of 26 states challenged the deferred deportation policy affecting about five million undocumented immigrants, and a federal trial judge in Brownsville, Texas, then issued a nationwide ban on enforcing the policy. Judge Andrew S. Hanen did so even though he has yet to hold the regular kind of trial in that case. He based the order on his finding that the states were likely to win when the case did go to trial.
The nationwide order was upheld by the U.S. Court of Appeals for the Fifth Circuit, and the Obama administration then took the case on to the Supreme Court, in the case of United States v. Texas.
On June 23, after spending a little more than nine weeks discussing the case following a public hearing, the Justices concluded that they could not put together a majority to decide the case; the eight Justices were split evenly.
When that happens, the court’s practice is to issue a one-sentence order upholding the lower court decision that was at issue, but without setting a precedent, as normal decisions do. In United States v. Texas, the practical effect of that was to leave in place the nationwide ban on enforcement that Judge Hanen had issued and that the Fifth Circuit Court had upheld. (The administration would still have a chance to try to undo that order, if the case does go to trial in Judge Hanen’s court, but for now the policy is definitely on hold and may remain on hold through most if not all of the rest of President Obama’s term in the White House.)
That same pattern is what Texas plus 12 other states are attempting to repeat in their challenge to the administration’s policy declaration on transgender rights. When the Supreme Court’s tied vote in the immigration case came out, those states already had pending in a different federal court in Texas their claim that the administration had no authority to impose upon state and local governments the transgender rights policy. Their lawsuit also contended that the policy is an unconstitutional attempt to coerce state governments into complying with the policy by threatening to withhold millions of dollars in federal education funding.
Under its policy, the administration has interpreted the federal law against discrimination “based on sex” as also banning discrimination based on “gender identity.” The aim is to protect transgender people who are assigned one gender at birth, but over time have a change in identity to the other sex. Various agencies in the federal government have followed that policy for more than two years.
The 13 states’ lawsuit against that policy was just beginning to unfold in the Fort Worth court of Federal District Judge Reed C. O’Connor. On July 6, the lawyers handling that case broadened their plea, asking explicitly for a nationwide order to forbid enforcement of the transgender policy. Quoting the Fifth Circuit Court’s ruling in the immigration case (and noting that that ruling had been upheld by the split vote of the Supreme Court), the states’ new filing said: “It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.”
Judge O’Connor has agreed to consider that request on an expedited basis, with the federal government’s response opposing such an order due on July 27, and the states’ reply due on August 3. A hearing will be held after that.
It is unclear at this point how Judge O’Connor would react to the fact that a federal trial judge in Newport News, Va., has already issued an order that would conflict with a nationwide order against enforcement of the federal policy. District Judge Robert Doumar has barred the Gloucester County school board in that state from enforcing a policy that will not allow a 16-year-old transgender student (assigned the gender of a girl at birth but now having the identity of a boy) to use the boys’ restroom. (The school board has set up an alternative set of unisex, single-user toilets for any student to use.)
Last week, lawyers for the federal government – relying directly on a decision by the U.S. Court of Appeals for the Fourth Circuit against the Gloucester County board’s policy in the case that has now led to Judge Doumar’s order – went into federal court in North Carolina, requesting a ban on enforcing the statewide policy in North Carolina that limits access for transgender people to state restroom and changing facilities. (North Carolina, like Virginia, is located in the Fourth Circuit region, so the government is arguing that the ruling by that appeals court also would apply to other states in that region.)
Meanwhile, the Gloucester County school board has announced a plan to go to the Supreme Court this week, probably on Tuesday, to ask that the Fourth Circuit’s ruling and Judge Doumar’s later order be postponed until the school board can pursue an appeal to the Justices.
And, further complicating the transgender controversy, a group of 10 states (none involved in the Texas case in Fort Worth) filed a new lawsuit in federal court in Nebraska last week. That lawsuit also seeks to bar enforcement of the policy, but so far that part of the filing does not say specifically how far they want such an order to extend.
