The Supreme Court today declined to revisit a case about how transgender students are treated with regard to bathrooms in public schools. It's leaving a lower court ruling intact that says it's unconstitutional for a school district to try to force a transgender student to continue using the bathroom facilities corresponding to their sex at birth.
In Monday's orders, the Supreme Court rejected a petition to hear Gavin Grimm v. Gloucester County School Board, a case that the Supreme Court originally planned to hear all the way back in 2016. The case has instead followed a winding road through three presidential administrations.
Gavin Grimm was a transgender male student at Gloucester High School in Gloucester County, Virginia. He began his transition while in school in 2014 and sought to get permission to start using male restrooms. The school board forbade it and set in place a policy of requiring trans teens to use either the restroom of their birth sex or a unisex bathroom.
Grimm, represented by the American Civil Liberties Union (ACLU), sued the school district, arguing that this treatment was a form of sex discrimination under Title IX of the Education Amendments of 1972. The Department of Justice under President Barack Obama agreed with a court interpretation that federal protections against sex discrimination also covered discrimination against trans students. It got involved in the case on Grimm's side. The Supreme Court then agreed to hear the case to attempt to answer the question of whether trans discrimination counts as sex discrimination.
Then, President Donald Trump was elected president. Before the Supreme Court actually heard the arguments, the Department of Justice in 2017, led by Attorney General Jeff Sessions, withdrew its legal guidance supporting Grimm's position. The Justice Department under Trump argued that sex and gender identity were separate legal concepts and therefore states were responsible for outlining policies on how to accommodate (or not accommodate) trans students.
This didn't kill the case. It just pushed the fight back down the ladder to the U.S. District Court for the Eastern District of Virginia. Grimm and the ACLU continued the fight and in August 2019, the court granted a summary judgment affirming Grimm's position. U.S. District Judge Arenda L. Wright Allen ruled that the Gloucester School District violated Grimm's rights under the 14th Amendment and Title IX, particularly by the school's refusal to update its records to designate Grimm as male after he had legally changed the sex on his birth certificate. In August 2020, a panel of the U.S. Court of Appeals for the 4th Circuit affirmed this decision with a 2–1 vote.
In February of this year, the school board petitioned the Supreme Court to again take up this case to settle whether Title IX obligates schools to treat trans students by their chosen sex rather than their birth sex.
Today the Supreme Court decided it would not get involved again, though Justices Clarence Thomas and Samuel Alito said they would have granted the petition to hear the case.
This leaves the legal conflict not fully resolved, but with the weight of federal court decisions in favor of trans students. For trans students in schools within the 4th Circuit (Virginia, Maryland, West Virginia, North Carolina, and South Carolina), the end of the Grimm case means that school districts cannot enforce restroom facility policies against trans students that treat them differently from other students.
We also have a sense of where the Supreme Court might have gone anyway from last year's 6–3 ruling in Bostock v. Clayton County. In that decision, the majority determined that the protections against sex discrimination in the Civil Rights Act of 1964 also protect against discrimination on the basis of gender identity and sexual orientation.
Title IX is a different federal law, but it would seem as though similar logic might apply. Nevertheless, the Supreme Court at this point is not interested in officially weighing in, which has the effect of leaving the pro-trans rulings in place.
Grimm, now well into adulthood, celebrated his win on Twitter:
I was barred from the bathroom at my highschool 7 years ago, when I was 15. 6 years ago, at 16, myself with the @ACLU/@ACLUVA filed suit in response to that discrimination. Twice since I have enjoyed victories in court, and now it's over. We won.
— Gavin Grimm ????️⚧️ (@GavinGrimmVA) June 28, 2021