The US Supreme Court, by a 7-2 margin, has declined to hear a case where a school board appealed a lower court verdict against their policy of demanding that students only use bathrooms according to the gender assigned to them at birth, thus providing a victory for transgender rights.
The case involved a former high school student, Gavin Grimm, who filed a federal lawsuit after he was told he could not use the boys’ bathroom at his public high school.
The policy of the school board for Gloucester county, Virginia required Grimm to use restrooms that corresponded with his biological sex – female – or private bathrooms.
Last August, the US court of appeals for the fourth circuit ruled that the board had practiced sex-based discrimination and violated Grimm’s 14th amendment rights by prohibiting him from using the boys’ restroom.
Judge Henry Floyd wrote: “The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past.”
Nonetheless, on the supreme court Samuel Alito and Clarence Thomas, two of the most hardline justices on a panel slanted 6-3 in favor of conservatives, voted to hear the board’s appeal.
Upholding the decision of the appeals court sets a strong legal precedent. But because the supreme court has chosen not to hear the case itself, there is still no nationwide ruling on the issue.
This means that the Appeals Court decision, although strictly binding only within that circuit, will still strongly influence lower court decisions elsewhere. But one cannot draw too strong a conclusion when the Supreme Court declines to hear a case. It may not necessarily signal that they support the Appeals Court decision. Sometimes they wait until different lower courts reach different conclusions. Or they may be waiting for a more suitable case.
One thing to note is that the anti-LGBT activists have focused most of their attention on trans women and sought to ban them from women’s sports and bathrooms, portraying them as either seeking to gain an unfair advantage or as sexual predators, and I suspect that the school board’s policy was aimed at them but they were taken to court by a trans male. There are similar ‘bathroom bills’ being introduced is state legislatures across the country, such as in Iowa, and at some point, especially if there are different lower court rulings, I expect the Supreme Court to step in.
On the other hand, other jurisdictions have banned discrimination agianst the transgender community.
As of June 2018, 18 states and the District of Columbia had adopted anti-discrimination laws that included protections for transgender people. Generally speaking, these laws applied to employment, housing, and public accommodations. These states are listed in the table below. As of June 2018, there was no federal anti-discrimination law that provided protections on the basis of sexual orientation or gender identity.
We seem to be at a similar stage with respect to the early days for the push to allow same-sex marriages, where different states had different laws and opponents of granting equal rights warned of all manner dire consequences if bans of such marriages were declared unconstitutional. And yet here we are. The predicted apocalypse has not materialized.
Let’s hope the eventual outcome on this issue is as positive.