As we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision. Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue. The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question.
After the Trump Administration withdrew the guidance, the Solicitor General’s office sent a letter to the Supreme Court to inform it of the policy change. The Court then ordered both parties in the case (the student and the school district) to submit letters expressing views on how the case should proceed. Both the school district and the student urged the Court to retain the case, hear oral argument, and decide the merits.
In a one sentence summary disposition, the Supreme Court vacated the Fourth Circuit’s prior opinion and remanded the case back to that court for reconsideration in light of the new position being taken by the Departments of Education and Justice. Once the Fourth Circuit completes that review, it is possible that the losing party will once again ask the Supreme Court to decide the case. That development, however, is likely months away. This action by the Supreme Court also has the effect of allowing more cases across the country presenting the same or similar issues to proceed, perhaps allowing more circuit courts to weigh in on the issue prior to the Supreme Court deciding it. It also makes it more likely that the Supreme Court will have its full complement of nine members before it is faced with this question again.
What this means for you:
From a federal regulatory perspective, institutions are not required to have policies permitting students to use facilities according to their gender identity. It remains an open question, however, whether Title IX requires such policies, and that question will remain open longer due to the Supreme Court’s order. Thus, institutions should closely monitor opinions from their regional circuit courts of appeals, which will control until (and if) the Supreme Court decides that question.
It also remains crucial for schools to continue to monitor developments at the state and local levels, as those governments have (and can) enact laws or ordinances requiring action or policies on issues related to facilities use and activity participation by transgender students.