Cultural, Legal Shifts May Sink Transgender Supreme Court Appeal

Legal and cultural shifts may give the U.S. Supreme Court reasons to again avoid controversy over transgender students and their use of school bathrooms, five years after dropping plans to hear a Virginia dispute.

That case is back before the justices following more lower court appeals where transgender male Gavin Grimm prevailed over the Gloucester County School Board’s decision denying him use of the boy’s bathroom in accordance with his gender identity.

Grimm’s lawyer says so much has changed since the last time the case reached this point, including the 2020 high court ruling outlawing transgender workplace discrimination, that the justices may not weigh in now. Uncertainties about the consequences of the legal issues at the heart of the case no longer exist. “Society and the court are in a different place,” said the ACLU’s Joshua Block.

Nevertheless, advocates say it seems inevitable transgender rights will make their way back to the court sometime soon. Other cases already working their way up to the court map the larger national debate about how best to the balance protections for transgender kids with a so-called cancel culture that suppresses unpopular voices.

Three Administrations

In 2014, Gloucester High School allowed Grimm, a sophomore then, to use the boy’s bathroom.

Parent backlash prompted the school board to reverse course. Grimm sued and won in the trial and appellate courts. But the conservative-majority Supreme Court threatened to undo that win when it agreed to review the Fourth Circuit ruling.

Donald Trump’s victory and his administration’s subsequent change in position on the issue prompted the justices to bounce the case from its docket before oral arguments and send it back to the lower courts.

The Biden administration, the third spanning the case, has signaled the government may reverse course again, and require schools to accommodate transgender students. This was the Obama administration’s position changed by Trump.

Throughout this legal wrangling, the nation grappled with how to protect transgender students while respecting the privacy rights of other students. There have been societal advancements and court decisions more favorable to transgender rights.

Real Life Experience

Block says “five years of real life experience” could sway the justices against review of this case.

Initial criticism of allowing Grimm to use the boy’s bathroom was that it “would violate the privacy of other students and would lead to sexual assault in restrooms,” according to the Fourth Circuit’s 2016 decision.

That just didn’t happen, Block said, adding that the country and the courts as a whole now are more aware of transgender issues.

Moreover, the Supreme Court ruled that federal laws prohibiting discrimination on the basis of “sex” covers transgender workers.

That question is substantially similar to the one at the heart of Grimm’s case—whether federal anti-discrimination laws cover transgender students as opposed to workers.

Friction Points

Alliance Defending Freedom’s John Bursch, who filed an amicus brief siding with the school in Grimm’s first case at the court, said that it seems inevitable transgender rights will make their way back to the court.

In the Supreme Court’s 2020 ruling on transgender workers, the court highlighted lingering questions, saying “we do not purport to address bathrooms, locker rooms, or anything else of the kind.”

It’s clear the justices recognize the “friction points” between transgender and other rights, particularly those in the First Amendment protections, Bursch said..

Bursch, for example, recently prevailed for his client Nicholas Meriwether, a philosophy professor at a public college in Ohio who was punished for refusing to use a transgender student’s preferred pronouns.

The Sixth Circuit found that the university flouted the “core principle of the First Amendment,” by violating Meriwether’s free-speech rights and creating an environment hostile to his sincerely held religious beliefs.

The university has since asked the full Sixth Circuit to reconsider the case, which will need to be resolved before the school can appeal to the Supreme Court.

Other cases challenge the ability of transgender athletes—typically transgender females—to participate in gender-segregated sports.

Bursch predicted that the Supreme Court will want to let the issues “percolate” in the lower courts—that is, allow other federal courts to wrestle with the matter—before weighing in itself. We’re probably two or three cases away from the justices getting involved, he said.

As the cases have been working through the courts, states have begun passing laws aimed at prohibiting transgender youth from obtaining “gender-affirming” medical care—including surgical and hormone therapies.

Critics say the laws harm so of the most vulnerable children by denying them access to medical care and further stigmatizing them.

Those on the other side warn that opposition to transgender rights—no matter how small—is being stamped out, sometimes by the government itself.

There was still support as recently as last year for a review of Grimm from Fourth Circuit Judge Paul Niemeyer, who urged the justices to take up the case again.

“The issues in this case certainly merit its doing so,” he said of the high court.

The case is Gloucester County School Board v. Grimm, U.S., No. 20-1163.