Statement of CFJ President Curt Levey on the Supreme Court’s remand today of the landmark transgender rights case,Gloucester County School Board v. G.G.:
The Committee for Justice applauds the Supreme Court for respecting its less-than-omnipotent role in the American legal system by remanding this potentially landmark case — originally scheduled for oral argument later this month — back to the Fourth Circuit. Now that the Trump Administration has withdrawn the Obama Education Department guidance on which the Fourth Circuit’s decision for the transgender plaintiff was based, returning the case to the Fourth Circuit was the only decision respectful of the Court’s limited role under the Constitution.
The Constitution states that the role of the federal courts is to resolve actual cases and controversies, which does not include interpreting statutes apart from a case that requires it. Yet that is exactly what the plaintiff and school board were asking the Supreme Court to do when they advised the Court to go ahead with hearing and deciding the underlying statutory issue — whether the sex discrimination prohibited by Title IX includes classifying students based on their biological gender — despite the withdrawal of the Obama guidance.
Had the Justices gone ahead and heard the case this spring, it would have made for a spirited legal and moral debate about the rights of transgender people. But the Court’s proper role does not include opining on the moral issues of the day or unnecessarily injecting itself into public controversies. Of course, one can be forgiven for thinking otherwise given the Court’s impulses to the contrary, such as its 2015 ruling on gay marriage. Fortunately, in this case, the Court chose the restrained role specified by Article III of the Constitution.
It is hard to say which way the Court would have ruled in the G.G. case. That would probably have depended both on Justice Kennedy’s vote and whether oral argument was postponed until April, when the Court will very likely have a ninth Justice.
We would have welcomed a common sense ruling from the Supreme Court that Congress did not intend to address transgender issues when it prohibited sex discrimination under Title IX in 1972. However, judicial restraint and the principles of limited government and separation of powers it serves are far more important than the intoxicating high of a Supreme Court victory.
Contact: Curt Levey; (202) 510–0128; email@example.com