School administrators trying to set common-sense bathroom safety policies received a temporary respite from the Supreme Court Monday. But the fight is far from over.
The court announced Monday morning that in the case of G.G. vs Gloucester County School Board, the judgment has been vacated and remanded to the Fourth Circuit appeals court in light of the Trump administration’s recent rescinding of the Obama-era transgender bathroom guidance.
The Supreme Court decided that it would not hear the case of biological teenage girl Gavin Grimm, who sued her local Virginia school board to use the boys’ room, citing federal discrimination law under Title IX, the 14th Amendment, and the Obama-era set of administrative guidelines.
A vacate and remand offers the parents and administrators temporary respite from complying with any court orders to the subject, as a vacated decision renders all previous judgement – which sided with Grimm – void, while allowing the competing arguments to be evaluated without Obama’s bureaucratic interpretation in the mix.
“The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” reads a statement from Alliance Defending Freedom attorney Kerri Kupec, whose organization represents the school board.
“It only makes sense for the Supreme Court to vacate the 4th Circuit’s earlier decision and instruct it to reconsider this case,” Kupec said. “The 4th Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers, and restrooms. School officials should be free to protect their students’ privacy, safety, and dignity without federal government interference.”
This development follows the news that both parties actually wanted to press forward with the case, despite the rollback of the Obama administration edict.
According to SCOTUSblog’s Amy Howe, while the parties still wanted the case heard by the high court, they differed on the when. The student’s ACLU legal team wanted the justices to hear the case and rule as planned, while the school board asked for more time.
However, the debate over who sets privacy policies in public schools – judges, bureaucrats, legislators, or educators and parents at the local level – isn’t over.
In addition to the eventual Fourth Circuit decision, there still remains the issue of the plaintiffs in the Sixth Circuit and two lower-level cases that were awaiting a ruling in Gloucester that will now be “coming out of hibernation,” ADF senior counsel Gary McCaleb explained in a phone interview.
Simply, for opponents of unconstitutionally rewriting federal discrimination law, this is more a breather than a win.
At heart, the cases raise the question of which branch writes our laws and further highlights the need for legislative or administrative language clarifying what Title IX actually means.
Title IX is the product of a 1972 law that prohibits schools receiving federal funds from discriminating “on the basis of sex.” While the law was clearly passed by Congress with biological sex in mind, there has been a concerted push from the Left in recent years to redefine that understanding to mean gender (which, of course, is based on thoughts and feelings, rather than science).
As we have previously pointed out at CR, legislation that would analogously redefine sex as gender identity in federal law has already been introduced in multiple congressional sessions, to no avail. Since Democrats have failed to get this sort of legislation through Congress thus far, that effort has now moved to the courtroom with these such cases.
Last year, Rep. Pete Olson, R-Texas (F, 58%) introduced a bill aimed at clearing up this confusion once and for all. The Civil Rights Uniformity Act of 2016 would have sought to “prevent the [Obama administration] from unilaterally rewriting Federal civil rights laws,” by barring the executive branch from interpreting Title IX’s provisions on “sex” to mean “gender.”
There may no longer be a soft mandate from the executive branch, but the ongoing nature of these cases shows that the American people have the option to answer this question via Congress, or leave it up to the federal judiciary. (For more from the author of “This Isn’t Over: SCOTUS May Have Put Its Trans-Bathroom Case on Hold, but More Are to Follow” please click HERE)