The Supreme Court will be deciding a case involving a transgendered boy who was denied access to the boys’ bathroom by his school, Gloucester County School Board v. G.G. The boy is both legally and medically male after surgeries.
The case involves Title IX, which prohibits discrimination “on the basis of sex.” A Department of Education official has stated in an unpublished letter that Title IX’s prohibition of “sex” discrimination “include[s] gender identity,” and that a school receiving federal funds and providing sex-separated facilities “must generally treat transgender students consistent with their gender identity.” The Fourth Circuit Court of Appeals found this letter controlling under the authority of an earlier Supreme Court case, Auer v. Robbins, 519 U.S. 452 (1997), involving different facts.
What is interesting is that, if the Supreme Court had not taken the case, the Fourth Circuit’s decision would have been left intact and the boy would be entitled to use the boys’ loo. It was the conservative Justices who wanted to review the case, perhaps to review Auer v. Robbins, a case written by Justice Scalia, a conservative icon, now of course deceased.
Trump is now trying to eviscerate federal agencies, a cause generally embraced by conservatives. It appears that the conservative justices on the Court may have set about serving the same end if they wish to restrict the application of Auer v. Robbins and thereby reduce the authority of the Department of Education. This transgender boy (as well as many other similarly situated people) might thereby become a victim of these politics.
It is ironic that a position taken by Justice Scalia, who has been virtually deified by conservatives, has to be ripped apart to achieve the end currently sought by conservatives. If this is true, as it appears to be, it buttresses my opinion that the conservative justices on the Supreme Court are result-oriented, and not faithfully analyzing the law as they are supposed to do but fashioning it to suit their current purposes.