Changing schedule for transgender case at Supreme Court
The Supreme Court on Wednesday stretched out the schedule for filing written briefs in the new test case on transgender rights. Among other effects of the change will be that the new government of President-elect Donald Trump will get time to decide whether to get involved — and, if it wishes — to change federal policy.
The Court had for the first time taken on the question of transgender rights when it agreed on October 28, 2016 to review the case of Gloucester County School Board v. G.G. Under the Court’s normal briefing schedule, the Obama administration would have faced a deadline of January 18 — two days before the Trump inauguration — to file a brief supporting G.G.’s rights — that is the government’s current view on the issue involved. The deadline for the Obama administration would have been seven days after G.G.’s merits brief was due, on January 11.
Under the new schedule, shown on the docket page for the case (docket 16-273), G.G.’s merits brief will now be due on February 23, and the government — if it were going to enter the case as an amicus case — would have a March 2 deadline for filing.
At this point, it is unknown what position the Trump administration will take on the overall question of transgender rights and on the specific question — at issue in the Gloucester County case — of what rights transgender people have to use sex-segregated intimate facilities, like toilets, showers and dressing rooms.
As of now, the highest profile policy of the Obama administration is that transgender students attending schools that receive federal funds have a right to use the intimate facilities that correspond to their gender identity, not to the gender assigned them on their birth certificates. The policy is based on the view that federal law banning sex bias in publicly funded education programs also bans bias based on gender identity.
That policy, however, is not now spelled out in binding federal regulations, but only in policy letters or guidance issued by federal education officials. If the new Trump government opts not to follow that policy, it could simply announce new guidance without having to issue any formal new regulations.
In any event, the Supreme Court’s change of the briefing schedule in the Gloucester County case gives the new Trump government time to settle its position on the issue as the Supreme Court case develops.
A change of position by the new government, however, would not put an immediate end to the pending case. That is because the school board is challenging a federal appeals court decision that applied the Obama administration policy in that case. And, in any event, the lawyers for G.G. — the transgender high school senior boy involved in the case — make their own argument that federal law on sex bias also bans gender identity discrimination.
Government policy on such legal questions is not necessarily driven by the demands of Supreme Court case schedules. But a schedule set by the Court can influence how much time the lawyers for the parties have to make up their minds what to say in the briefs they will file.
There is no indication that the change in the briefing schedule for the transgender case was brought about to accommodate the new Trump administration. The normal schedule, if it had not been changed, would have required the school board to file its merits brief next Monday (now, it is due January 3) and that date would have set up the time for the Obama administration to get involved, if, as seems likely, it was going to do.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.
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