Supreme Court pass on transgender bathroom case frustrates conservatives

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

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