OPINION: This article contains commentary which reflects the author's opinion
The U.S. Supreme Court on Monday declined to take up a major transgender rights case.
The justices opted not to hear the Gloucester County School Board’s appeal of a 2020 ruling by the Richmond-based 4th U.S. Circuit Court of Appeals that transgender student Gavin Grimm is protected under the federal law that bars sex discrimination in education.
The 4th Circuit ruling does not set a national legal precedent.
Grim is a “transgender male” — was born a biological female but identified as male, legally changed his name, and began hormone therapy.
The principal at first gave him permission to use the boys’ bathroom, but the school board later adopted a policy saying restrooms were “limited to the corresponding biological genders.”
“For school officials, as for parents, the question how best to respond to a teenager who identifies with the opposite biological sex is often excruciatingly difficult,” lawyers for the school district told the Supreme Court. But the privacy rights of millions of students are at risk if their transgender classmates are allowed to use bathrooms matching their gender identities, they said.
Lawyers from the American Civil Liberties Union, representing Grimm, told the court that treating him differently by requiring him to use separate single-stall bathrooms singled him out “and stigmatized him as unfit to use the same restroom as his peers.”
The Supreme Court on Monday declined to wade into a dispute over whether schools may bar transgender students from using a bathroom that reflects their gender identity. https://t.co/0lNQkKX0nG
— USA TODAY (@USATODAY) June 28, 2021
Last week, prior to the ruling on Monday, the National Review’s Ed Whelan summarized why this could be catastrophic:
Title IX explicitly allows schools to “maintain separate living facilities” for males and females, and the Department of Education’s implementing regulation has long allowed schools to “provide separate toilet, locker room, and shower facilities on the basis of sex.” Gloucester County’s policy of assigning multi-user restrooms on the basis of sex clearly complies with this regulation.
Far from discriminating on the basis of gender identity, Gloucester County’s policy ignores—and thus treats as irrelevant—a student’s gender identity that differs from her sex. It is Grimm who seeks to compel Gloucester County to discriminate on the basis of gender identity—by creating a special exception that would allow girls who identify as boys, but not girls who identify as girls, to use the boys restroom.