The U.S. Supreme Court Monday vacated a federal appeals court ruling in favor of a transgender high school student and directed the lower court to reconsider its earlier ruling. The Supreme Court order in Gloucester v. G.G. came in response to “the guidance document” issued by the departments of Education and Justice on February 22.

The February 22 document was a “Dear Colleague Letter” from two acting officials of the DOJ and DOE, advising public school officials that the Trump administration was “withdrawing the statements of policy and guidance” in two letters from Obama administration officials.

The Obama administration’s DOJ and DOE letters had advised schools receiving federal funding that Title IX’s prohibition on discrimination in education based on “sex” included discrimination based on “gender identity.”

The Trump administration letter did not disagree with that assessment but noted that it would “more completely consider the legal issues involved.” An official in the Solicitor General’s office forwarded the Trump DOJ-DOE letter to the Supreme Court and the following day, the Supreme Court clerk asked both parties in the case to say “how this case should proceed.”

Joshua Block, the ACLU attorney representing transgender student (identified in many public reports as Gavin Grimm), said the high court should proceed with the case as planned. Attorneys for the Gloucester, Virginia, school district that appealed the case agreed the court should proceed to hear their appeal but suggested it postpone argument until President Trump could appoint a new Solicitor General to file the government’s position on the case. It also suggested the Supreme Court could vacate the Fourth Circuit decision and remand it, arguing that the Obama administration letters had been the “basis” of the Fourth Circuit decision.

LGBT legal activists did not seem at all surprised by the Supreme Court’s decision to take that latter course of action and all expressed optimism about the case’s eventual outcome.

“The Supreme Court acted today consistent with its ordinary protocol of allowing lower courts to fully address an issue before stepping in,” said Jennifer Levi, director of the Transgender Rights Project for GLBTQ Legal Advocates & Defenders (GLAD). “While it is impossible to predict outcomes, I am optimistic that the lower court in this case will resolve this matter in favor of Gavin just as courts across the country have done in similar Title IX cases brought on behalf of other transgender students.”

“Given the importance of the issue to transgender students, we hoped the Court would keep the case,” said National Center for Lesbian Rights Legal Director Shannon Minter, “but their ordinary practice is to give the lower courts an opportunity to consider an issue in the first instance.”

Minter said that, while it is true the Supreme Court took the appeal initially even though it was in a preliminary stage, “the Fourth Circuit had fully weighed in on the legal issues….”

“The Fourth Circuit’s decision below relied on the guidance and since the Department of Education has now withdrawn the guidance,” said Minter, “the Supreme Court is giving the Fourth Circuit an opportunity to rule directly on the statutory issue for the first time.”

The ACLU, which is representing the transgender student in the case, said it was “disappointed” the Supreme Court would not hear the case this term, but called Monday’s order “a detour, not the end of the road.”

“Nothing about today’s action changes the meaning of the law. Title IX and the Constitution protect Gavin and other transgender students from discrimination,” said ACLU lead attorney Joshua Block.

In urging the Supreme Court to proceed with the case as planned, Block argued that the Trump administration’s letter to public schools “makes resolution of that question more urgent than ever.” Further, said the ACLU, “the Court will inevitably have to settle the question by clarifying the proper interpretation of Title IX….”

“Delaying resolution of that question will only lead to further harm, confusion, and protected litigation for transgender students and school districts across the country,” wrote Block. “Another few years of needless litigation would not help clarify the legal question facing the court, and it would impose enormous costs on individual students until the Court provides additional clarity.”

Delay of the case will certainly affect Gavin Grimm, who is currently a senior at Gloucester High School. But Lambda Legal’s national legal director Jon Davidson said similar cases in other circuits could percolate to the high court more swiftly.

In his lawsuit, Grimm v. Gloucester, a three-judge panel of the Fourth Circuit U.S. Court of Appeals voted 2 to 1 on April 19 that Title IX of the Education Amendments Act of 1972 –which prohibits discrimination based on sex by federally funded educational institutions— also prohibits discrimination based on gender identity. The majority’s ruling in Grimm came on preliminary motion requesting that he be able to use his public high school’s boys’ restrooms until his overall lawsuit can be resolved.

An 87-year-old Reagan-appointed federal district court judge had denied that motion, declaring Grimm to be a female and ruling that “sex” in Title IX does not include gender identity or sexual orientation. The Fourth Circuit panel reversed that decision, noting that the U.S. Department of Education had issued an opinion letter last year, saying Title IX requires “a school generally must treat transgender students consistent with their gender identity.”

The panel had sent the case back to the district court with instructions to reconsider the preliminary injunction based on the panel majority’s decision. But the Gloucester County School Board immediately appealed the panel’s decision to the full 4th Circuit. And in August, the Supreme Court agreed to stay the Fourth Circuit’s decision until the Supreme Court could decide whether to take the case for review.

Typically, the high court doesn’t take cases in a preliminary stage, but in October, it agreed to hear this appeal, specifically identifying two questions: One was a procedural issue involving whether a federal agency’s “unpublished letter” carries “the force of law;” the other was whether the departments’ interpretation of Title IX should “be given effect.”

Both parties in the case –as well as organizations on both sides of the argument—filed briefs. Oral argument was scheduled for March 28. Now the case will be reargued in front of the Fourth Circuit, based in Richmond, Va.

The ACLU’s position is that the Gloucester School Board’s “sweeping new policy” that requires students to use the school restroom that corresponds with the gender on their birth certificate (or use a “separate” restroom that is not labeled “girls” or “boys”) violates Title IX’s prohibition of discrimination based on “sex.”

The school district’s primary argument is that, when Congress passed Title IX, it intended the word “sex” to mean “nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” The U.S. Department of Education’s interpretation of “sex” to include “gender identity,” it argued, amounted to creating new law.

The Trump DOJ-DOE letter on February 22 said its withdrawal of the previous guidelines “does not leave students without protections from discrimination, bullying, or harassment.”

“All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” said the Trump administration letter. The Trump DOJ-DOE letter said the Obama administration guidance letters did not contain “extensive legal analysis or explain how [the letters’ position] is consistent with the express language of Title IX, nor did they undergo any formal public process.” And it added, “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”

The Supreme Court’s new order in the case comes at a time with the U.S. Attorney General, head of the Department of Justice, is in a very public battle to keep his jobs amid allegations that he lied to Congress and had inappropriate, perhaps, illegal communications with Russian officials during the 2016 presidential campaign. Attorney General Sessions, then a U.S. senator from Alabama, was a prominent supporter of Republican presidential candidate Donald Trump.

It also comes as the Trump administration is struggling to find a new Solicitor General. Prominent attorney Miguel Estrada told the National Law Journal last week, “I would never accept a job that requires Senate confirmation….” The reaction was an apparent reflection of Estrada’s feelings about having to withdraw his nomination to the U.S. Supreme Court in 2003, following a Democratic filibuster. Earlier, Proposition 8 attorney Charles Cooper announced he did not want to be considered for the job.

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