THE SUPREME COURT CAN’T DECIDE WHETHER TO DECIDE: Powerline reports that three petitions are pending before the Supreme Court on issues of whether the law covers various LGBT-related issues, but the Court keeps putting off deciding whether to take the cases. Does this signal something about Kavanaugh’s and/or Roberts’ willingness to take on controversial issues? Or are those who think so reading too much into the tealeaves?

The other LGBT-related issue that has thus far escaped the Supreme Court’s decision is whether Title IX requires schools to assign transgender students to the bathrooms, locker rooms, showers and athletic teams that they psychologically identify with. When Attorney General Sessions withdrew the Obama-Era guidance that said it does, the issue suddenly became less pressing. But that doesn’t mean the issue was resolved. The argument remains, and there are still private lawsuits and potential lawsuits out there. Pete Kirsanow and I argued that Title IX does not so require here.