The Supreme Court has decided to take up the issue of transgender rights – and the real possibility exists that next Tuesday's election could have an impact on the ultimate outcome.
The high court has agreed to review a decision by the Fourth U.S. Circuit Court of Appeals which allows a Virginia transgender student to use bathrooms of the opposite sex. The justices will hear the appeal from the Gloucester County School Board next year. The case involves a 17-year-old high school senior who is biologically a girl but "identifies" as a boy. Because of the high court's order, she won't be permitted to use the boys' restroom in the meantime.
Brad Dacus with the Pacific Justice Institute says at issue is the Obama administration's inclusion of "gender identity" in their definition of sex in Title IX. If the high court upholds the appeals court's decision, Dacus says it "will have a huge, monumental impact on the average parent and their lack of trust – not just for the Supreme Court but also for public education as we know it."
Mat Staver, founder and chairman of Liberty Counsel, says it's "ridiculous" that the high court has to address the matter at all.
"The federal law does not allow persons to subjectively think, and therefore be treated, as the opposite of their biological sex," the attorney offers. "I have very little confidence [that the court will] follow the plain rule of law."
Staver explains that the next president could have an impact on the case because whoever moves into the Oval Office will be appointing a justice to replace the late Antonin Scalia.
"I don't believe the next justice will be seated in time to hear this case – but it's possible that you could have a four-four split," he suggests.
"... If there's a justice appointed before that decision comes down, [a] four-four split could be pushed over to the next term so that they would have the opportunity to see which way the fifth vote would decide this case."
Among the issues in the case is whether the administration's guidelines regarding the treatment of transgender students have the force of law. It is the first time the Supreme Court will be addressing the issue of "gender identity" and whether laws protecting sex discrimination in education can be applied.