Yesterday, the Supreme Court denied certiorari in Gloucester County School Board v. Grimm, a long-running case that questions whether Title IX of the Civil Rights Act requires schools to allow transgender students to use bathrooms of the opposite sex rather than accommodating them with alternative gender-neutral restrooms. Justices Thomas and Alito noted their dissent and, while they didn’t explain their reasoning, I agree with them that the Court should have taken this case.
If this case sounds familiar to you, that’s because the Court already granted cert once before to consider whether an Obama-era guidance letter could authoritatively interpret Title IX to require schools to allow bathroom use by transgender students of the opposite biological sex. The case was mooted when the Trump administration rescinded that letter, but in the process it returned the case to the Fourth Circuit which, in the absence of the guidance letter, compounded its legal error and based its conclusion forcing schools’ hands not only on a faulty interpretation of Title IX but on a sweeping and erroneous interpretation of the Equal Protection Clause of the 14th Amendment to the Constitution.
As with so many questions of certiorari, we are left with little more than speculation on what happened inside the black box of the justices’ conference room. All we know for sure is there were not four votes to take up the case (it’s even possible a third justice besides Thomas and Alito voted in favor and simply chose not to publicly note his or her dissent). A refusal to take up this case isn’t an endorsement of the Fourth Circuit’s ruling, either as a matter of legal precedent, or as a practical matter. After all, it may be that other justices felt the ruling was incorrect but that this simply wasn’t the right case to address the issue. Perhaps some justices thought a different topic would have been a preferable foray into the world of transgender law, such as locker room and shower usage or the problems created for women’s athletics by an influx of biological males.
Some justices may have been hoping that delay would allow the creation of a circuit split, often considered to be a prerequisite for Supreme Court review. Lack of adequate “percolation” is something even Justice Thomas pointed to recently as a reason not to take up a case striking down Indiana’s law prohibiting eugenic abortions. There is such a split in the offing, as the Eleventh Circuit is currently deciding whether to grant en banc review of a similar case coming out of Florida. Given the current makeup of that circuit, it’s likely a majority of the judges would agree with Judge Bill Pryor’s excellent dissent from the panel decision in that case, which ruled against a school board that barred a biological girl from using the boys’ restroom. Such an en banc ruling would both create a circuit split and would likely provide a compelling analysis of the issue from a textualist and originalist perspective that could provide a template for the high Court’s own consideration.
For my part, I don’t think the lack of a circuit split should dissuade the justices from hearing this case. The Court’s docket is at historically low levels. It heard only 58 oral arguments this year, while in the 1980s it regularly heard nearly 200 cases per term, hovered near 100 cases per term throughout the 1990s, and has been slipping ever since. The Court is at no risk of being overworked.
Furthermore, this isn’t an issue that is likely to fade away. On the contrary, demands for cross-sex bathroom use are only on the rise, and will escalate as many public schools finally return to in-person learning this fall. Even if the Court were to consider a case this term, it would barely settle the question in time for schools to apply its guidance for the fall of 2022. Additional delay leaves schools in limbo. Businesses, similarly, are left without clear guidance after last term’s textually bankrupt Bostock decision. Justice Alito’s prediction that that decision would be used to support rulings on bathroom usage and Title IX has been proven correct, despite Justice Gorsuch’s majority opinion insisting he was merely deciding a narrow statutory question.
It’s interesting that the justices who dissented from cert are the senior members of the conservative bloc. Their experience of decades on the Court may have taught them the difficulty in waiting for the elusive perfect case to decide an issue and the pitfalls of a “strategic” approach to grants of cert rather than taking the significant cases that arise, when they arise, and letting the chips fall where they may.
We may never know what happened in the justices’ black box. But I hope the Court will be willing to address this important issue expeditiously when it next has the opportunity rather than leaving national law in a state of confusion.