The U.S. Supreme Court backs boys in girls’ bathrooms

Bad news from the U.S. Supreme Court:

The U.S. Supreme Court has refused to hear a Virginia school district’s appeal in a case brought by a trans-identified former high school student who sued for the right to use bathrooms and locker room facilities designated for the opposite sex. In an order list released Monday, America’s high court denied a petition for a writ of certiorari in the case of Gavin Grimm v. Gloucester County School Board.

The court noted in its brief order that Supreme Court Justices Clarence Thomas and Samuel Alito, two of the court’s more conservative members, would have granted the petition to hear the case.

“Too many people played integral roles in our success and too many people who loved me so much,” Grimm wrote on Twitter Monday. “I have nothing more to say but thank you, thank you, thank you. Honored to have been part of this victory.”

The American Civil Liberties Union, which represented Grimm, celebrated the Supreme Court allowing a legal victory at the Fourth Circuit Court of Appeals last year to stand.

“This is the third time in recent years that the Supreme Court has allowed appeals court decisions in support of transgender students to stand,” stated Josh Block, senior staff attorney with the ACLU’s LGBTQ & HIV Project, in an emailed statement.

“This is an incredible victory for Gavin and for transgender students around the country. 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.”

In 2015, Grimm, born female but identifies as male, filed a lawsuit against Gloucester County Public Schools. The student claimed that policies preventing trans-identified students from using bathrooms and sex-specific changing areas that correspond with their gender identity violated Title IX civil rights law. 

At issue was the preference of Grimm to use the boy’s restrooms and locker rooms, despite being biologically female. As a compromise, the high school had built three single-use, gender-neutral restrooms at its campus to accommodate Grimm, allowing any student to use those restrooms.

Supporters of the school district’s position have argued that school districts should be able to “protect their students’ privacy, safety, and dignity without federal government interference.” In September 2015, U.S. District Court Judge Robert G. Doumar, a Ronald Reagan appointee, ruled against Grimm. But that decision was overturned in April 2016 by a three-judge Fourth Circuit panel.

In a 2-1 decision, the Fourth Circuit panel concluded that federal antidiscrimination law applied to the case, with the majority arguing that “Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.”

However, in a 5-3 decision released in August 2016, the Supreme Court put a stay on the panel decision, pending the filing and decision on an appeal. After the case was remanded back to the Fourth Circuit, the appeals court sent the case back to the district court in July 2017. 

In August of last year, a three-judge Fourth Circuit panel again ruled 2-1 in favor of Grimm. The majority stated that they were joining “a growing consensus of courts” in concluding that “equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender.”

The two judges who ruled in Grimm’s favor were appointed by President Barack Obama. 

Judge Paul Niemeyer, a George H.W. Bush appointee, authored a dissent to the panel decision. Niemeyer argued that the Virginia high school had “reasonably provided separate restrooms for its male and female students and accommodated trans-identified students by also providing unisex restrooms that any student could use.”

I’ll note here that two justices did want to review the case–Clarence Thomas, a George H. W. Bush appointee, and Samuel Alito, a George W. Bush appointee. For all the trashing of the Bushes, it must be noted that their appointees have been far more reliable than Trump’s thus far. In fact, the single most significant victory for the transgender movement thus far–the Bostock ruling–was authored by Neil Gorsuch, who replaced Justice Antonin Scalia. Nobody knows what Roberts is doing—I suspect that the Court is attempting to thread the needle on religious liberty and sexual rights, but I have a few questions:

If gender goes out the window, what is left?

Will anyone fight for anything?

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