(Quin Hillyer, Liberty Headlines) Conservative legal groups reacted with pleasure Monday to a U.S. Supreme Court action that, for now, will block transgender students from practicing any automatic privilege of using whichever bathroom they choose.
The Richmond, Va.-based Fourth Circuit Court of Appeals had ruled in Gloucester County School Board v. G.G. that schools must comply with an Obama administration directive allowing students to use the bathroom of whatever gender they “identify” with. (The directive originally had come from an “Acting Deputy Assistant Secretary” of the Education Department, James Ferg-Cadima, and was subsequently affirmed by a “Dear Colleague” letter from the Obama Justice and Education departments.) Traditionalist groups and numerous legal scholars were aghast at the ruling, saying it completely mischaracterized federal law while risking violations of students’ privacy and safety.
On Feb. 22, the new Trump administration withdrew the Obama directive. In light of that (which effectively re-reverses federal-agency policy back to where it stood pre-Obama, meaning no such automatic privileges for transgendered people), the Supreme Court vacated the Fourth Circuit decision and asked the lower court to reconsider the case. For now, then, schools are free to forbid students from using bathrooms different from what their physiognomy would indicate.
“The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” said Kerry Kupec, legal counsel for the conservative group Alliance Defending Freedom, in a statement after the high court’s action. The Alliance, known for winning numerous legal cases in defense of religious liberty, had filed a friend-of-the-court brief on behalf of the school system, against the Obama administration.
“School officials should be free to protect their students’ privacy, safety, and dignity without federal government interference,” Kupec added.
Other conservative groups were just as pleased.
“We are encouraged that policymakers and the Supreme Court are increasingly skeptical of the federal government forcing boys and girls to shower together, room together on school trips, and use the same locker rooms and bathrooms,” said Tony Perkins, president of the Family Research Council.
Several top conservative lawyers focused on the procedural aspects of the case.
“Increasingly over the last 8 years, we have been governed by administrative edict expressed in the form of letters by low-level bureaucrats,” said Ron Rotunda, a well-known professor at Chapman University’s Fowler School of Law. “The Supreme Court is now rolling that back.”
“It is important for the Court of Appeals to decide whether there is a constitutional right in issue,” said Sidney Powell, author of LICENSED TO LIE: Exposing Corruption in the Department of Justice. “No precedent exists to support such a right.”
“Remand to the Fourth Circuit [was] the only logical move,” said Curt Levey, president of the Committee for Justice, noting that once the Trump team changed federal guidance on the issue, “the basis” for the Fourth Circuit’s earlier decision had “collapsed.” Levey continued: “After all, the Court’s job is to resolve actual cases and controversies, not to opine on the meaning of statutes divorced from actual cases.”
Nonetheless, liberal groups and politicians cried foul.
“Deeply disappointed by SCOTUS decision,” Tweeted Democratic U.S. Sen. Patty Murray of Washington State. “[B]ut let’s be clear, #transgender students remain protected under Title IX.”
“The American people have already moved in the right direction and … the rights of trans people cannot be ignored,” said Joshua Block of the American Civil Liberties Union. “This is a detour, not the end of the road, and we’ll continue to fight for Gavin and other transgender people to ensure that they are treated with the dignity and respect they deserve.”
Some conservatives, while pleased with the reprieve, worried that the ACLU and company may well win the next round when the Fourth Circuit’s three-judge panel hears the case again.
“Given the [liberal] makeup of the 4th Circuit panel,” said Hans von Spakovsky of the Heritage Foundation, “there seems little doubt that the panel will issue another bad decision outside of the law that will bring the case right back to the Supreme Court.”