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Supreme Court Declines to Take Up Transgender Bathroom Case, Leaving in Place Victory for Trans Student

A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

The Supreme Court on Monday declined to take up a case over a Virginia school board’s policy on transgender bathroom use, leaving in place a lower court’s ruling that the school unconstitutionally discriminated against a biologically female student who was denied access to the boy’s bathroom.

The justices chose not to hear the Gloucester County School Board’s appeal of a 2020 ruling by the 4th U.S. Circuit Court of Appeals that said transgender student Gavin Grimm is protected under Title IX, the federal law that bars sex discrimination in education, as well as the U.S. Constitution’s requirement that people be treated equally under the law.

The 4th Circuit ruling does not set a national legal precedent.

The Court’s decision marks a victory for Grimm, who first sued the school board in 2015 after being prohibited from using the boys’ restrooms. In 2016, the high court took up the case but ultimately did not issue a ruling and sent it back to lower courts.

“We won,” Grimm wrote in a tweet on Monday. “I have nothing more to say but thank you, thank you, thank you. Honored to have been part of this victory.”

Lawyers for the school district had argued that the privacy rights of millions of students would be at risk if transgender students were allowed to use bathrooms matching their gender identities.

“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.

The court order said that Justices Clarence Thomas and Samuel Alito would have taken up the case.

The Supreme Court ruled last year that the meaning of discrimination “on the basis of sex” in the workplace encompassed “gender identity,” though it did not expand the definition of sex to include gender identity. It said that to discriminate against someone for their “gender identity” necessarily entails discrimination on the basis of sex.

Judge Henry Floyd wrote on behalf of the 4th Circuit that the Supreme Court’s 2020 ruling helped guide the decision in the Grimm case.

Floyd wrote that in light of the 2020 ruling, “we have little difficulty in holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him.”

Earlier this month, the Education Department announced that it would expand the definition of the federal civil-rights statute banning sex discrimination in federally funded education programs to include gender identity amid a national debate over whether biological males should be allowed to compete in girls’ sports.

The Biden administration said it would interpret the Supreme Court’s 2020 ruling to apply to discrimination against gender identity in schools.

The administration’s ruling could expose schools that seek to preserve sex-segregated spaces to litigation and could lead to challenges against Republican-led efforts to preserve female only sports, though Education Secretary Miguel Cardona was vague about how aggressive the Department of Justice would be in pursuing such cases.

“The reality is each case has to be investigated individually,” Cardona said, adding that schools should “not wait for complaints to come to address these issues.”

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