At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students.  After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.   (Updated 3/6/17 — This morning, the Supreme Court sent the case back to the Fourth Circuit for reconsideration.)

As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females.  The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender.  At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender.  When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required.  When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation.  In taking the case, the U.S.  Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.

Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation.  When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case.  After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation.

Given that the position of the government was a central issue in the case, the Supreme Court took some unusual steps in the case.  Typically, the party that lost in the lower court has to file its brief forty-five days after the Supreme Court takes the case and the party that won below has thirty days after the filing of that brief to file its brief in response.  Under normal procedures, the School Board’s brief would have been due on December 12 and the student’s brief would have been due on January 11 (with oral argument probably being scheduled for the February argument session — last week and this upcoming week).  However, shortly before the due date for the School Board’s brief, the Supreme Court revised that schedule.  Under the new schedule, the School Board’s brief was due on January 3, and the student’s brief was due on February 23.  This revised schedule gave the new administration time to decide whether it would be changing its position in this case.

Earlier this week, the Solicitor General and the Department of Education announced that the federal government was setting aside its prior interpretation of the letter and notified the U.S. Supreme Court of that change.  On the same day that the student’s brief was due, the U.S. Supreme Court requested both parties to file letters addressing how the case should proceed in light of that change.  Those letters are due this upcoming week.

While, in theory, the U.S. Supreme Court could proceed with this case and decide it solely on the issue of the proper interpretation of the regulation separate from any interpretation given by the Department of Education, the odds ate against that happening.  The U.S. Supreme Court has a strong tendency to avoid deciding issues that were not considered below.  The Fourth Circuit decided this case by deferring to the government interpretation of the regulation.  It did not address the meaning of the regulation in the absence of such deference.  Particularly with an eight-member court, the U.S. Supreme Court will likely try to buy itself some time (and get a full court) by sending the case back to the Fourth Circuit.

The reality is that this case is a perfect example of one role of courts.  There is a law (technically a regulation) in place governing the overall issues — gender discrimination and school bathrooms.  However, a sub-issue (the gender of transgender students) has arisen that probably was not on the minds of those who drafted the regulation.  While the legally easy solution is to redraft the regulation to deal with this sub-issue, the political branches have reasons for not redrafting the regulations.  In the absence of such action, it falls on the courts to decide how the regulation as currently drafted applies to this “unanticipated” circumstance.  While some would argue for courts to apply the “intent” of those who drafted the statute or regulation, there is no actual intent with regards for this type of issue.  Instead, there is a “value” or “rule” embodied in the statute and regulation.  The issue is what result in this case is most consistent with that value or rule.  Depending on your view of gender and gender identity, that question is either very simple or very complex.  At some point, the courts will need to decide what gender means in the context of transgender individuals.  Over the next week or two, however, it seems likely that the U.S. Supreme Court will say that, whenever that time may arrive, it’s not going to be this year.