WASHINGTON -- The Supreme Court will not decide the hot-button issue of transgender bathroom rights after all.
The justices on Monday sent the case of Gavin Grimm, a 17-year-old Virginia high school senior, back to a federal appeals court because the Trump administration withdrew guidance to schools that had instructed them to grant transgender students' bathroom preferences. The case had been scheduled for oral argument later this month.
By rescinding the Obama administration's policy, the Departments of Justice and Education eliminated the basis for the appeals court's earlier decision in Grimm's favor. While the Supreme Court could have decided the case on other grounds, it decided instead to give the U.S. Court of Appeals for the 4th Circuit another chance.
Lawyers for Grimm and the Gloucester County School Board had urged the court to decide the case despite the sudden change in the federal government's position on the issue. But the justices likely reasoned that they could deadlock 4-4 on the case while federal appeals court Judge Neil Gorsuch's nomination to the ninth seat is pending, rendering their decision moot.
The lawyers had said the high court still could decide whether a 1972 prohibition against sex discrimination in education requires that students can use sex-separated facilities based on their gender identity.
"The school board believes the better course is for the court to proceed with argument and a decision on the merits, after receiving the current views of the United States," Kyle Duncan, the board's lawyer, wrote. Delaying action, he said, could lead to "enormous litigation costs as well as needless and divisive political controversy."
Joshua Block, the American Civil Liberties Union lawyer representing Grimm, had said the court should hear the case without delay. "Delaying resolution would provide no benefit to the court and would needlessly prolong harm to transgender students across the country awaiting this court’s decision," he wrote.
Missing from both letters was Gorsuch's pending nomination. With hearings slated to begin March 20, the Senate could confirm the 49-year-old judge in time to hear April's oral arguments, and certainly those lined up for the 2017 term beginning in October.