A local school board in Virginia urged a federal appeals court on Tuesday to give the Trump Administration until June 1 to sort out its position on the civil rights of transgender students. A high-profile case on those rights should not be rushed, but instead should be put on a schedule that would allow a hearing in September, lawyers for the Gloucester County School Board argued.
In a brief filed in the U.S. Court of Appeals for the Fourth Circuit, the school board’s attorneys opposed a request by the 17-year-old transgender youth involved in the case to speed it up so that a decision could be made before he graduates from high school on June 10.
Since the Fourth Circuit Court has to start the case all over again, to confront the basic issue of what federal civil rights law means about transgender rights, there would not be time for the case to develop fully on an expedited schedule, the board’s filing said.
The Trump Administration, the document noted, has abandoned the former Obama Administration view that transgender students have a right to use the restroom at school that matches their gender identity, but the Trump team has not yet developed its own interpretation of Title IX — the 1972 law that bars discrimination “on the basis of sex” in federally funded education programs.
The Obama Administration had taken part in the case to support the legal claim of the student, Gavin Grimm. But the Trump Administration so far has taken no specific position on the case, other than to notify the Supreme Court that no longer following the Obama view and that it is re-thinking the scope of Title IX.
In a prior ruling by the Fourth Circuit Court, in Gavin Grimm’s favor, the decision relied solely on the Obama Administration view, rather than an explicit declaration of the Circuit Court’s own view. That was the result that the Supreme Court had planned to review at its current term. It passed up that chance after being told of the switch by the Trump Administration, and chose instead to send the case back to the Circuit Court to reconsider.
Last week, the youth’s lawyers asked the Circuit Court to speed up its new review, setting it up for an early May hearing. In response, the school board suggested that the Circuit Court must make a fresh start, and added that “it would only be fair — and would aid this court’s deliberations — to give the United States adequate opportunity to weigh in again now that the merits question is squarely posed.”
The Trump Administration has not yet been fully staffed, the filing said, so “it is unlikely that the United States would be able to participate on the timeline that [the student] requests.” Presumably, if the government were to take part in the case, it would do so in the role of “friend of the court.”
In the timetable proposed by the school board, its new brief on the Title IX issue and that of the student would be filed by May 1, with friend-of-court briefs due on June 1, and the two sides’ reply briefs on July 3. The Circuit Court, the board suggested, could then hold a hearing in a sitting planned for mid-September.
Although Grimm would have graduated from high school by then, his case would not lose its status because he would still have a claim for money damages from the school board for enforcing its restroom policy against him.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.
