Bench Memos

Law & the Courts

Gloucester County’s Misguided Detour

For reasons I don’t understand, the Gloucester County school board is planning to ask the Supreme Court to review the Fourth Circuit’s badly confused ruling in April on transgender access to restrooms. In that ruling, the divided panel vacated the district court’s denial of a preliminary injunction to the student plaintiff, and it remanded the matter to the district court for further proceedings.

I see zero chance that the Supreme Court would grant review of the Fourth Circuit’s ruling—both because there is no final judgment in the case and especially because there is so much confusion over what the Fourth Circuit actually ruled. Even worse, one risk in seeking Supreme Court review is that the Gloucester County school board will have an incentive to overstate what the Fourth Circuit in fact ruled.

Perhaps I’m missing something, but it seems to me that the far better course for the Gloucester County school board is to let the case return promptly to the district court. On remand, the school board should simply explain to the district court that the Fourth Circuit did nothing more than rule that the district court had relied on an invalid ground in denying a preliminary injunction relief and that it remains open to the district court to rely on other grounds to deny that relief. In particular, the school board should point out that the Fourth Circuit never reached the question whether Title IX requires that schools allow boys who identify as girls to use single-sex facilities, reserved for girls (and vice versa, of course, for girls who identify as boys), and it should argue that such a reading of Title IX is plainly wrong. The district court should then rule that the student is not entitled to preliminary injunctive relief under a proper reading of Title IX.  

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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