- The Washington Times - Monday, June 28, 2021

The Supreme Court took a pass Monday on a legal challenge over shared restrooms for transgender students at a Virginia high school, fueling frustration among right-tilting court-watchers eager for the conservative majority to resolve the intensifying legal clash over gender identity.

The court’s denial of certiorari allowed the lower court ruling to stand in favor of Gavin Grimm, a transgender male — a biological female identifying as a male — who sued the Gloucester County School Board for barring him from using the boys’ restroom, marking the third time the high court has refused to take up transgender access to public school facilities.

Josh Block, a senior staff attorney with the American Civil Liberties Union LGBTQ & HIV Project, said that in each of the cases, the appeals courts ruled in favor of transgender students seeking to use restrooms and other facilities based on their gender identity as opposed to their sex at birth.

“This an incredible victory for Gavin and for transgender students around the country,” Mr. Block said in a statement. “Our work is not yet done, and the ACLU is continuing to fight against anti-trans laws targeting trans youth in states around the country.”

Indeed, the court’s silence on gender identity discrimination since its 2020 decision in Bostock v. Clayton County, Georgia — which centered on employment — has created a legal void quickly being filled by conflicting rules from the Biden administration and red-state legislatures on transgender athletes and access to gender transition procedures and public facilities.

“Clearly, there’s a huge split in the country,” said Emilie Kao, director of The Heritage Foundation’s DeVos Center for Religion & Civil Society. “There have been over 100 bills brought in the state legislatures to protect privacy, safety and fairness by using biological sex as the basis for policies in schools.”

Litigation has inevitably followed, leading legal analysts to agree that it’s not a matter of if the court will revisit the gender identity issue, but when.

“I’m somewhat optimistic that the court will take a case that raises the issue in the next year or so,” said Gail Heriot, a professor at the University of San Diego School of Law.

Mr. Grimm sued in June 2015 after the school board refused to let him use the boys’ facilities, instead offering him a private restroom, which he said was stigmatizing. 

The 4th U.S. Circuit Court of Appeals ruled in favor of Mr. Grimm, now 22, reasoning that the Supreme Court’s 2020 decision in Bostock justified striking down the Gloucester County school system’s policy. 

Critics countered that Justice Neil M. Gorsuch, who wrote the majority opinion in Bostock, specifically said the decision applied only to Title VII, not to “sex-segregated bathrooms, locker rooms, and dress codes.” He said the justices “do not prejudge any such question today.”

“[Gorsuch] said this only applies to Title VII on employment; this doesn’t apply to Title IX on bathrooms and sports, but obviously courts are applying it that way, the Biden administration is applying it that way,” Ms. Kao said. “So the Supreme Court really should step in.”

Ms. Heriot said the Bostock ruling strengthened the Gloucester school board’s Title IX case because applying the decision’s logic “would mean that ALL boys can use the girls’ facilities, not just those who identify as girls (and all girls can use the boys’ facilities).”

“But since Title IX’s regulations explicitly allow for separation by sex, the case is very, very different from Bostock and (I believe) should have been decided in favor of the school board,” said an email from Ms. Heriot, who sits on the U.S. Commission on Civil Rights.

Only two justices — Clarence Thomas and Samuel A. Alito Jr. — voted to take up the Grimm case, two shy of the four justices needed to grant a writ of certiorari.

Conservative constitutional scholar Ed Whelan called the court’s decision a “grave mistake” while noting that another school restroom case is looming in the 11th U.S. Circuit Court of Appeals. Adams v. School Board of St. Johns County could set up a circuit court split.

“Lawyers for the transgender student will likely argue that the Supreme Court’s denial of Gloucester County’s certiorari petition somehow means that the 11th Circuit should deny St. Johns County’s petition for en banc review,” Mr. Whelan said in National Review Online’s Bench Memos. “But it’s far more likely that some of the justices who voted to deny certiorari did so because St. Johns County’s petition was still pending and it, therefore, wasn’t yet clear whether there would be a conflict among the circuits.”

Another theory is that the high court simply sought to avoid the issue.

South Texas College of Law professor Josh Blackman, an active member of the right-leaning Federalist Society, speculated that the justices wanted to stay away from the “contentious” case.

“They probably won’t take a case until the lower court rules against the trans students. At that point, it will be too late to do anything but rule for the trans students. We saw a similar pattern play out with gay marriage rulings,” he said.

Despite the high court’s 6-3 conservative majority, the panel “is not as conservative as the numbers suggest,” said Mr. Blackman, adding that the justices have allowed the law related to transgender bathroom policies to develop in the 4th Circuit and that it is “difficult to undo those precedents and judgments.”

Curt Levey, president of the conservative Committee for Justice, said that the court is sometimes “happier to let something happen without having to put its thumbprint on it, and maybe that’s true of Gorsuch and [Chief Justice John G.] Roberts.

“There might not be five votes in the direction we would like to see it go,” said Mr. Levey, president of the conservative Committee for Justice, adding that “it’s clearly going in the wrong direction from the conservative point of view.”

There is no shortage of transgender rights cases making their way through the legal pipeline, thanks in large part to the ACLU.

The left-tilting legal giant filed a lawsuit Friday against Tennessee’s recently enacted measure requiring businesses to post signs on public restrooms that permit transgender access.

Under the statute, which goes into effect Thursday, a sign must be posted outside restrooms where transgender individuals may be present, reading: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

“Forcing businesses to display a stigmatizing message for political expedience is unconstitutional,” Hedy Weinberg, ACLU of Tennessee executive director, said in a statement. “Furthermore, by targeting the transgender community, these government-mandated signs marginalize and endanger transgender individuals.”

Last year, the ACLU sued Idaho after the state became the first to bar male-to-female transgender athletes from competing in girls’ and women’s sports — the law was put on hold pending the outcome of the legal fight — and followed up this year with a lawsuit against a similar measure in West Virginia.

Already knocking at the Supreme Court’s door is Dignity Health v. Evan Minton, which pits a Catholic hospital against a transgender female-to-male patient who sought to have a hysterectomy as part of his transition. The hospital refused, citing its religious and ethical positions.

The justices have not said whether they will hear that challenge.

Justices offer no comment on why they deny certiorari, as was the case with Grimm v. Gloucester.

“Maybe the justices wanted to delay taking on more controversial cases this year,” Ms. Heriot said. “Maybe they would have preferred a case where the Court of Appeals hadn’t also raised a constitutional issue. Or maybe they would have preferred to deal with the issue in the athletic team context. We’ll know more when the next case comes before the Court.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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