Bench Memos

Law & the Courts

Supreme Court Should Grant Review in Transgender Bathroom Case

In its opinion last year 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—when it assigned multi-user restrooms on the basis of sex and made single-user restrooms available to all students. The Supreme Court is scheduled to vote tomorrow on whether to grant Gloucester County’s certiorari petition seeking review of the panel majority’s misguided decision.

Without summarizing the compelling grounds for certiorari that Gloucester County presents, I will simply emphasize three points:

1. The Fourth Circuit panel majority, like the Biden administration, rests its legal analysis on the extraordinary assertion that a girl who identifies as a boy is in fact a boy. That assertion contradicts Justice Gorsuch’s statutory analysis in Bostock v. Clayton County, which hinges on the proposition that a woman who identifies as a man is in fact a woman. Under Gorsuch’s reasoning, an employer who treats a woman who identifies as a man (and, say, wants to wear men’s clothing) differently than a man who identifies as a man is discriminating on the basis of sex. But if the woman who identifies as a man were in fact a man, the employer, in treating one man (or some men) differently from other men, could not ipso facto be said to be treating members of one sex differently from those of the other sex.

2. 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.

3. If the Court fails to grant review, the Biden administration will use its financial leverage to steamroller all schools into complying with its mistaken interpretation of Title IX and will extend that mistaken interpretation beyond restrooms to locker rooms, dormitory rooms, and girls’ and women’s sports teams. Justice Gorsuch stated in Bostock that the consequences of that decision for “bathrooms, locker rooms, or anything else of that kind” were “questions for future cases.” This is one of those future cases, and it would be irresponsible of the Court not to decide whether school boards retain broad discretion to exercise their best judgment on how to address the range of questions posed by students who identify as transgender.

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