In a badly confused opinion in 2020 in Grimm v. Gloucester County School Board, a divided Fourth Circuit panel ruled that a school board violated the Equal Protection and Title IX rights of a “transgender male”—i.e., a female who identified as male—by barring her from using the boys’ restrooms at her high school. Among other things, the panel majority ruled that “heightened scrutiny” applied to the Equal Protection claim “because transgender people constitute at least a quasi-suspect class.”
That sloppy reasoning cannot survive the Supreme Court’s recent opinion in United States v. Skrmetti. A law that differentiates on the basis of biological sex does not discriminate on the basis of transgender status. It instead disregards transgender status.
Unfortunately, Grimm remains binding precedent in the Fourth Circuit. So a panel held two weeks ago when it ruled (in Doe v. South Carolina) that a female student who identifies as male is entitled to a preliminary injunction (pending appeal) that bars school officials from enforcing a state law that provides that public school multi-stall restrooms “designated for one sex shall be used only by members of that sex.”
Last week, South Carolina filed in the Supreme Court an emergency application for a stay of the Fourth Circuit’s injunction. The state’s application forcefully argues that the Fourth Circuit’s injunction “disrupts the status quo in a preliminary posture in a case where the Plaintiffs are unlikely ultimately to prevail.” Further, the injunction requires the school district to defy the sound interpretation of Title IX that the Trump administration has embraced, and it thus puts the district at risk of losing its federal funding.
It’s long past time for the Supreme Court to clean up the Fourth Circuit’s bathroom mess. The Court should grant South Carolina’s application.