Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
In a serious blow to LGBT activists, the Supreme Court has sent back a high-profile transgender-rights case to a lower court for further consideration.
Today the high court confirmed that it would not hear Gloucester County School Board v. G.G., a case that pitted a Virginia school board against Gavin Grimm, a transgender student, who sought to use the school bathroom that corresponded with her gender identity, not her biological sex.
The justices vacated the lower court judgment that ruled in favor of the student, and sent the case back for remand to the U.S. Court of Appeals for the Fourth Circuit.
“What this means is that the Fourth Circuit’s badly confused ruling has been wiped out: It is no longer binding precedent in the Fourth Circuit, nor should it be cited by any other court,” said Ed Whelan, a legal expert in a post on National Review’s Bench Memos.
However, Whelan and other constitutional scholars also noted that the Court’s decision did not close the case, nor did it signal how the justices would likely rule in subsequent transgender-rights cases.
“I do not think that the Supreme Court’s move reliably indicates anything about how the justices view the merits,” of the case, Gerard Bradley, a professor of law at the University Notre Dame Law School, told the Register.
Oral arguments had been scheduled for later this month in the case, which hinged on the claim that the school board’s refusal to allow Grimm to use the boys’ bathroom violated new Title IX guidelines issued by the Obama administration.
Those guidelines had stated that federal law barring discrimination based on sex in schools that receive federal funds, also applied to gender identity.
In February, shortly after U.S. Attorney General Jeff Sessions was confirmed, the Department of Justice and the Department of Education issued new guidelines that rejected this interpretation of Title IX. Trump has said that the states, not the federal government, should set their own policies for dealing with the needs of transgender students.
Most legal experts were not surprised when they learned of the Supreme Court decision to send Gloucester County School Board v. G.G. back to the the Fourth Circuit, which had based its decision in favor of Grimm on the Obama White House’s controversial interpretation of Title IX.
If Grimm continues her legal battle, any legal claims “should depend on Title IX directly, not on the confused guidance that the Obama administration offered,” Ed Whelan told the Register.
Notre Dame’s Bradley noted that the justices’ decision had been expected.
"The interpretation’ of Title IX obviously played a significant role in the lower courts’ reasoning in this case,” he said.
“So it is natural for the high court to ask those judges if they want to change their minds now.”
But it is not yet clear, he added, what the Fourth Circuit’s next steps will be.
“It is quite possible that the lower courts will decide that, even if Title IX must be understood to classify persons as either male or female, it cannot constitutionally be applied that way at least in the case of Grimm, and other "transgender" persons,” Bradley added.
Looking ahead, he expects that Grimm’s case, or another that makes similar claims, will come before the high court.
“Within the next year or two, Grimm’s case or one like it will come to the Supreme Court for review, and the Court will feel obliged to grant review, and decide both the statutory (Title IX) and constitutional questions.”