A public school board in Virginia, arguing that no one ever thought that separate restrooms for the sexes would be illegal, asked the Supreme Court on Wednesday to delay a court order that it must provide equal access to those facilities for transgender students. The plea is written in technical legal terms, but it seeks to put before the Justices for the first time the heated national controversy over transgender rights.Lawyers for the Gloucester County School Board said the board will file an appeal on the issue within the next several weeks, but needs prompt action to prevent disruption of school routine when classes begin in early September.
Technically, its request will go first to Chief Justice John G. Roberts, Jr., who handles emergency legal requests from the geographic area (the Fourth Circuit) that includes Virginia. He can decide the request on his own, or share it with his seven colleagues – the more common approach these days.
The Fourth Circuit also includes North Carolina – the scene of a major clash over gender identity between the Obama administration and the governor and legislature of that state. What the Supreme Court does with the Virginia dispute could affect North Carolina, at least by implication. The federal government is relying on the Virginia case involving Gloucester County schools as it seeks to block a new North Carolina law limiting transgender people’s access to restroom and other private facilities in state buildings.
At the core of the Gloucester County case are two lower court rulings. First is a decision by the U.S. Court of Appeals for the Fourth Circuit on April 19, upholding the federal government’s view that discrimination based on “gender identity” is illegal under so-called Title IX, a federal law that outlaws bias “based on sex” in education programs receiving federal funds Second is an order by a federal trial judge in Newport News, Va., on June 23 putting that appeals court decision into effect, and requiring access to the boys’ restroom at Gloucester Courthouse High School for a 17-year-old student who was assigned female gender at birth but now identifies as a male.
The student, who will be a senior when classes begin September 6, is identified in court papers only by his initials, “G.G.” Joining in his challenge to the school board’s restrooms policy is his mother, Deirdre Grimm.
In the background of this one case about a single student’s rights is the rapidly spreading dispute over the Obama administration’s energetic effort, especially in the past year, to promote equality for transgender people – not only in education, but in the workplace and in other settings.
Although the Supreme Court has ruled repeatedly on cases involving sex discrimination, it has not yet decided an issue directly on the rights of transgender people – those assigned one gender identity at birth who later express their identity in the opposite way. Doctors label that medical condition as “gender dysphoria.”
The controversy over transgender rights has grown in intensity in the year since the Supreme Court’s historic decision on the rights of gays and lesbians, granting them an equal right to get married. Some of the same approach to equality that prevailed in that case is now being used to try to advance transgender people’s rights.
One of the reasons that lawyers for the Gloucester County school board expressed optimism that the Supreme Court would act in their favor now is that their case involves the highly technical question of whether courts should defer to the interpretation that federal government agencies give to their own regulations implementing federal law. That is the kind of deference the Fourth Circuit Court applied to the federal policy on transgender rights for students.
Three current members of the court – Chief Justice Roberts and Justices Samuel A. Alito, Jr., and Clarence Thomas – have recently criticized that practice of accepting agency interpretations, arguing that it amounts to handing over to bureaucrats a task that should be done by the courts. . Justice Thomas commented as recently as in May that this practice “is on its last gasp.” (The late Justice Antonin Scalia also was a critic of that approach.)
The practice dates back to Supreme Court decisions in 1945 and 1997. In the school board’s new filing, it explicitly asked the Justices to overrule the precedents behind that practice.
The Chief Justice is expected to ask for a reply from lawyers for G.G. and his mother before Roberts or the full court acts on the issue.
Lyle Denniston is currently the National Constitution Center’s constitutional literacy adviser. Later this summer, Denniston will become our full-time Supreme Court correspondent based in the Washington, D.C. area.