Dear Commons Community,

The U.S. Supreme Court announced yesterday that it would not decide whether a transgender boy in Virginia could use the boys’ bathroom at his high school.

The decision not to take his case, which came as the court is awaiting the appointment of a ninth member, means there will be no ruling on the highly charged issue of transgender rights this term. The issue will almost certainly return to the Supreme Court, probably in a year or two.

Until then, lawsuits in the lower courts will proceed, the political climate and public opinion may shift, and the court’s composition will almost certainly change.  As reported in the New York Times:

“Monday’s development was a setback for transgender rights advocates, who had hoped the Supreme Court, which established a constitutional right to same-sex marriage two years ago, would aid their cause. 

Instead, in a one-sentence order on Monday, the Supreme Court vacated an appeals court decision in favor of the student, Gavin Grimm, and sent the case back for further consideration in light of the new guidance from the administration.

The Supreme Court had agreed in October to hear the case, and the justices were scheduled to hear arguments this month. The case would have been the court’s first encounter with transgender rights, and it would probably have been one of the biggest decisions of a fairly sleepy term.

“Thousands of transgender students across the country will have to wait even longer for a final decision from our nation’s highest court affirming their basic rights,” said Sarah Warbelow, the legal director of the Human Rights Campaign.

Kerri Kupec, a lawyer with Alliance Defending Freedom, a conservative Christian group, welcomed Monday’s development.”

This is not a good sign in that the Court will likely move to the right on social issues with new appointments such s Neil Gorsuch in the not too distant future.

Tony