Friday, December 09, 2016

Briefing Change In SCOTUS Transgender Case May Have Substantive Impact

In October, the U.S. Supreme Court granted certiorari in Gloucester County School Board v. G.G., a high profile case on bathroom choice by transgender students in schools receiving federal funds. (See prior posting.) Today SCOTUSblog reports that the Court, in an action that will have unusual impact has extended the time for filing briefs in the case.  The extension of time means that it is more likely that Justice Scalia's vacancy on the Court will be filled before the case is argued, eliminating the chance for a 4-4 split.  In addition, according to Amy Howe at SCOTUSblog:
[T]he schedule change ... means that the federal government’s position in the case will be determined by the Trump, rather than Obama, administration. Deference to the Obama administration’s interpretation of federal law has been a central feature of G.G.’s argument, and it was the basis for the lower court’s ruling in G.G.’s favor. The Trump administration will not take office in time to file a brief supporting the school board, but it could nonetheless reverse course before G.G. files his brief. Such a change could substantially alter the arguments that G.G. makes and the justices consider. Indeed, if the Trump administration does rescind the existing Department of Education letter or issue its own guidance on the question, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance.