Supreme Court Returns Transgender Case To Lower Court

On Monday, March 6, the Supreme Court of the United States cancelled oral arguments in the case of Gloucester County School Board v. G.G.

Albany Update has previously reported on this case, which arises out of a Virginia school board’s refusal to allow a female student who identifies as male to use opposite-sex facilities. Following the Trump administration’s decision to rescind former President Barack Obama’s transgender school bathroom edict, the Court vacated a Fourth Circuit Court of Appeals decision in the Gloucester County case and directed the Court of Appeals to reconsider it. According to The Wall Street Journal, the Court of Appeals “had based its decision on legal guidance from the Education Department under Mr. Obama, which advised that federal antidiscrimination law entitled transgender students to use facilities corresponding to their gender identity.” Now that the Obama administration’s guidance on this issue has been rescinded, the Court of Appeals will revisit the question of whether federal sex discrimination law includes a ban on discrimination based upon gender identity.

New Yorkers for Constitutional Freedoms believes that this is a positive development. If the current Supreme Court had heard this case, the likely result would have been a 5-3 decision declaring that gender identity is protected from discrimination under federal law. Now that the case has been returned to the Court of Appeals, there are two possible outcomes. If the Court of Appeals makes its decision based on the law, the case will be an easy win for the Gloucester County school board. If, on the other hand, the Court of Appeals makes its decision based on politically correct fantasies concerning gender identity, the outcome could be quite different. Either way, the Supreme Court might still hear the case of Gloucester County School Board v. G.G. at some future time; if that happens, it is possible that the composition of the Court will be different (and more conservative) than it is now.