Trump and The Definition of Sex

As the Trump transition team rolls out names for cabinet posts, the most anticipated name is that of his Supreme Court nominee.

Based upon his public statements and the list of names he released in September, Trump’s nominee is expected to fit the Scalia-mold.  Should those expectations hold, getting that nominee confirmed by the Senate may prove to be a challenge, but not an impossibility.

We can expect Senate minority leader Charles Schumer and Senate Democrats to strongly oppose any nominee that shares Scalia’s jurisprudence.  But Schumer and Senate Democrats have to tread carefully: numerous Senate seats are up for reelection in 2018, including those from states that just voted for Trump (among others, Florida, Montana, Missouri, North Dakota, and West Virginia).  If Democrats push too hard against Trump’s agenda, these incumbents run the risk of alienating their constituents.

We can expect the Democrats to use the famed filibuster to obstruct the nomination. (Under current Senate rules, 60 votes are needed to end a filibuster and vote on a Supreme Court nominee—more votes than the Republicans have.)  However, if Democrats refuse to cooperate, Republicans may employ the so-called nuclear option i.e. Republicans may change the Senate rules and require that only a simple majority be needed to end a filibuster respecting a Supreme Court nominee.  The Democrats opened the door to this possibility by employing the nuclear option themselves in November 2013 in order to vote through numerous executive branch and judicial nominations over Republican filibusters.  Having a precedent makes it far more likely that Republicans would consider the option.

A Few Cases To Watch

The composition of the Court could prove decisive in several cases to be considered this term, among them:

Trinity Lutheran Church of Columbia, Inc. v. Pauley

In this religious liberty case, a Lutheran church that runs a school and daycare applied for a grant from the state of Missouri for a new, safer playground surface made from recycled tires.  The state offered the aid program to nonprofit organizations across the state.  Even though Trinity Lutheran met all criteria for the grant, the state denied its request solely on the grounds that it was a church.

This case poses several important questions:

• Can a state exclude a church (or any other religious institution) from an otherwise neutral and secular program when there is no valid Establishment Clause concern i.e. no concern that the state is promoting a religious message or entangling itself in religious affairs?
• Does the state violate the Free Exercise and Equal Protection Clause when it discriminates against the church?

More fundamentally:

• Can the state discriminate against a religious institution simply because it is religious?

The tire program is facially neutral.  By making a grant, the state would in no way be promoting a religious message or involving itself in the inner workings of the church.  In denying the grant, the state punished the church for its religious identity, refusing to give it benefits that any other nonprofit could receive.

Grimm vs. Gloucester County School Board

A second important case to watch involves a Commonwealth of Virginia school board and a student suffering from gender dysphoria.  The Virginia school board has petitioned the Supreme Court for a review of the Obama Administration’s reinterpretation of Title IX and Title IX regulations as they relate to school bathrooms.

At issue in the case is the Department of Education’s (DOE) reinterpretation of the word “sex.”  According to a long-standing Title IX regulation, schools are permitted to “discriminate” on the basis of sex by providing separate bathrooms for male and female students.  The DOE, through an opinion letter issued by a low level official, (but not published or subjected to a notice and comment period) is now interpreting this regulation to mean that “sex” refers to gender identity as well as biological reality.

The administration followed up with a “Dear Colleague” letter (sent after the initiation of this lawsuit) to all school districts informing them that their Title IX funding would be jeopardized if they do not allow students suffering from gender dysphoria access to the bathroom of choice. (The action threatened in this letter has since been enjoined by a federal district court in Texas.)  The policy in these two letters, drafted without any notice or comment from the public, and going far beyond what Congress intended when it passed Title IX, form the shaky basis for the government’s argument that students should be granted access to the bathrooms, locker rooms and showers of the sex with which they identify, even if it differs from their biological sex.

With this case, the Court has the opportunity to better define how an agency interprets its own regulations and how those interpretations interface with laws passed by our representatives in Congress.

These are just two cases that the Supreme Court has agreed to hear this term, and we can expect a great many other significant legal issues to come before the Court in the near future.  Now more than ever we need a Court that will preserve the rule of law in our country.  Now more than ever we need a Supreme Court nominee who is not afraid to overturn bad precedent in favor of holdings in line with a faithful reading of the Constitution.