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SCOTUS Sends Transgender Bathroom Case Back to Lower Court

The U.S. Supreme Court announced today that it has vacated and remanded the high profile transgender student bathroom case, Gloucester County School Board v G.G. (GG), back to the Fourth Circuit Court of Appeals. The Fourth Circuit has been directed to reconsider the case “in light of the guidance document issued by the Department of Education and Department of Justice,” in February.

At issue in both the guidance document and the case, is the interpretation of the word “sex” in Title IX of the U.S. Education Amendments of 1972, which, for federally funded education programs, prohibits discrimination based on sex. The Fourth Circuit Court of Appeals’ original decision in the GG case was based largely on an Obama Administration opinion and unpublished agency letter, which had interpreted “sex” to include “gender identity.” After that ruling, the U.S. Departments of Education and Justice issued a “guidance letter” to every public school in the country affirming this interpretation and saying that students should be allowed to choose their restrooms, locker rooms, showers, and dormitories based on their self-determined gender identity.

In February, however, the Trump Administration issued a new guidance letter that stated the Obama Administration’s guidance did “not…contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The Trump guidance letter concludes, “the Department of Education and the Department of Justice have decided to withdraw and rescind the [Obama guidance] in order to further and more completely consider the legal issues involved.”

In response, the U.S. Supreme Court has sent the case back to the Fourth Circuit for “further consideration.” The results of this case could have major implications for North Carolina’s House Bill 2, the Public Facilities Privacy & Security Act, which establishes a statewide access standard for multiple occupancy bathrooms and other intimate facilities based on biological sex. According to Alliance Defending Freedom, “The 4th Circuit should affirm the plain meaning of Title IX, which protects boys’ and girls’ privacy in locker rooms, showers, and restrooms. School officials should be free to protect their students’ privacy, safety, and dignity without federal government interference.”


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