School counselors hoping for a conclusion to the debate about transgender students and school bathrooms will not get one in the near future. The U.S. Supreme Court recently announced that it is sending the landmark transgender rights case, Gloucester County School Board v. G.G., back to the Fourth Circuit to be reconsidered in light of the Departments of Justice and Education rescinding a Title IX guidance that clarified protections for transgender students.
The Gloucester County school district filed a petition last August asking the Supreme Court to determine if it is violating federal law by refusing to allow Gavin Grimm access to the boys' restrooms. The petition also questioned the previous guidance issued under the Obama Administration.
The Obama guidance that said school districts must allow transgender students to use the bathroom matching their gender identity was originally sent in a letter to school districts nationwide in 2015 from the Departments of Education and Justice. Officials in 11 states sued the federal government over it.
The Trump Administration withdrew that guidance and replaced it with guidance which now leaves it up to states and local school districts to establish policies regarding transgender restroom use. In light of the new guidance, the Supreme Court returned the case to the Fourth Circuit in Richmond. That court will have to decide whether Title IX protects against gender identity discrimination. A federal appeals court has yet to make such a decision, and the issue is being litigated in several other courts. The Supreme Court is more likely to agree to take a case when lower courts disagree on an issue.
The 4th Circuit also announced that it will hear arguments in May about a North Carolina bathroom bill. Plaintiffs in that suit argue that provisions barring transgender students from using the bathroom consistent with their gender identity violate the equal protection clause of the 14th Amendment.