The U.S. Supreme Court's marquee case of the current term, just accepted for review two weeks ago, could evaporate into thin air as a result of the election of Donald Trump as President.
On October 28, the Court decided to hear the lawsuit of a transgender high school student who was born biologically female but who identifies as a boy, and who wants to use the boys' restroom at his school in Virginia. The local school board barred him from doing so in December 2014, and, the following June, he sued.
The hot-button contest, known as Gloucester County School Board v. G.G., was to have tested the validity of a letter issued by the Obama Administration's Department of Education (DOE) last January, interpreting federal law to require local schools to "treat transgender students consistent with their gender identity."
But vice president-elect Mike Pence told The Christian Post last month that "both he and the Republican presidential candidate believe that the transgender bathroom issue can be resolved with common sense at the local level. Washington has no business intruding on the operation of our local schools."
According to Brianne Gorod, the chief counsel of the Constitutional Accountability Center, it would be simple for the Trump administration to order the withdrawal of the opinion letter, issued by the DOE's office of civil rights. That's because the Obama Administration's DOE issued the letter without any notice and comment rule-making. (Reversing such agency actions that have gone through that process is a more arduous process.)
Withdrawal of the letter might prompt the High Court to simply send the case back to the lower courts for reconsideration in light of changed circumstances.
The suit of the boy, Gavin Grimm (who has been widely identified in the press though he is not identified in the lawsuit caption), was thrown out by the district court. On appeal, however, the U.S. Court of Appeals for the Fourth Circuit reinstated it, ordering the lower court to give more weight to the DOE letter. The DOE letter interprets Title IX of the Education Amendments of 1972, which bans sex discrimination by schools receiving federal funds.
The Supreme Court then took the case two weeks ago to review the Fourth Circuit's ruling.
"If Trump decides to withdraw that letter, it's possible that the Supreme Court could send the case back to the Fourth Circuit" to reconsider its own decision," according to Gorod, speaking at a public teleconference addressing the likely impact of the election on the current Supreme Court docket.
Alternatively, Gorod noted, it was also still possible that the Court would "go ahead and consider the case" based on its own interpretation of what Title IX requires or doesn't.
Of course, we don't know for certain that Trump will withdraw the letter, or whether Pence correctly stated Trump's views. Last April Trump criticized a North Carolina law that banned transgender people from using bathrooms that correspond to their gender identity, saying the state "should leave it the way it is." He did not address the federal DOE letter, however.
An inquiry to the Trump campaign seeking comment has not been returned.