WASHINGTON, DC—Wednesday the Supreme Court temporarily blocked President Obama’s changing of federal law to grant special protections to transgender people, but did so with a signal that if Hillary Clinton becomes president, the Court will make Obama’s rewriting of current civil rights laws permanent.
Title IX of the Civil Rights Act forbids schools that receive federal dollars from discriminating on the basis of sex. “G.G.” is a biological girl who identifies as a transgender boy, and she wanted to use the boys’ facilities at her public school. She asked the Obama administration for support.
The U.S. Department of Education issued a new rule reinterpreting the agency’s then-current regulations, changing the regulatory definition of “sex” to include a person’s preferred “gender identity.” Specifically, the new rule allowed a student to use the restroom and shower facilities of the gender the student identifies with, at the same time that students of the opposite biological sex might be using that same restroom or shower.
G.G. sued the school, but lost at a preliminary stage in federal district court. She then appealed.
On April 19, the U.S. Court of Appeals for the Fourth Circuit held in a 2-1 decision in G.G. v. Gloucester County School Board that the term “sex” in regulations implementing Title IX does indeed include gender identity, as well as biological sex. Judge Henry Floyd, appointed by Obama, wrote for the majority that the term “sex” is ambiguous, and therefore deferred to the agency’s interpretation of the word, invoking a doctrine often criticized by legal conservatives, called Auer deference.
Judge Paul Niemeyer vigorously dissented with a careful legal analysis that has received significant public attention, showing that when Congress passed Title IX, the term “sex” clearly meant biological sex, and that if that term is redefined to include gender identity, then a school cannot fulfill its responsibility under Title IX to provide separate facilities for each sex unless it requires every student to choose facilities according to their identity, and no longer permits anyone to choose a facility based on their biology and anatomy.
The school district is represented on appeal by Kyle Duncan, a well-respected national constitutional attorney. Duncan asked the Supreme Court to issue a stay preventing the Fourth Circuit’s decision from taking effect until the nation’s highest court could consider the matter.
On Wednesday, the High Court voted 5-3 to grant a temporary stay.
The Court’s one-page order included the note that Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan would all deny the stay.
It also included a paragraph by Justice Stephen Breyer where he explained that he voted to grant the stay because the Court was currently in its summer recess, and so he was willing to preserve the status quo for a short period of time until the Court has an opportunity to consider a formal petition for review.
This is significant because the Supreme Court considers several factors when deciding to grant a stay, the most important of which is normally whether each justice believes that the petitioner has a reasonable likelihood of success if the Court grants review of the appeals court’s decision.
The fact that three justices voted to deny the stay all but guarantees that each would rule in favor of Obama’s new transgender policy. Breyer’s taking the unusual step of writing to explain that he was voting for the stay to “preserve the status quo” as a “courtesy” until the Court can take the case strongly signals that he, too, does not currently plan to vote in favor of the school board.
With the vacancy created by the death of Justice Antonin Scalia, that would mean that the current Supreme Court is probably tied 4-4 on this issue. (That is not guaranteed, because one of the justices voting for the stay, such a Anthony Kennedy, might still be considering voting for the transgender policy when the Court decides the merits of the case.) If Hillary Clinton becomes president, then there will soon be a five-justice majority to rule in favor of transgenderism. If Scalia’s seat remains vacant for many months, through the time when this case will be taken and heard by the High Court, then a 4-4 tie vote would leave the Fourth Circuit’s transgender decision in place.
So unless a Republican president appoints a conservative justice to fill Scalia’s seat early next year, liberals’ rewriting of an iconic civil rights law will become the law of the land.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.