The United States Supreme Court has refused to review a recent decision of the Seventh Circuit mandating that Indiana schools allow transgender students to use bathrooms consistent with their gender identity, not their biological sex.
From Newsweek: Supreme Court Deals Blow to School in Fight Against Transgender Student:
The U.S. Supreme Court dealt a blow to an Indiana school district on Tuesday in their fight against a transgender student who was prohibited from using the boys’ bathroom.The court denied to hear arguments in the METROPOLITAN SCHOOL DISTRICT V. A. C case, allowing a lower court ruling, which sided with the transgender student, to stand….The decision comes several months after the lawsuit was filed by the student, who is being represented by the American Civil Liberties Union (ACLU) in Indiana, against the Metropolitan School District in Martinsville, Indiana….
The Seventh Circuit’s Order, available here, had affirmed a lower Indiana federal court preliminary injunction blocking Martinsville Schools’ policy that students use bathrooms bathrooms consistent with their biological sex.
The ACLU is, of course, ecstatic: U.S. Supreme Court Declines to Hear Challenge to Title IX Victory for Transgender Rights
Bloomberg points out a couple key aspects of the Court’s refusal to consider the case: US Supreme Court Passes on Transgender Student Bathroom Dispute
Affirming a trial court decision, the Seventh Circuit ruled the student was likely to win his claims of unlawful discrimination in violation of the US Constitution’s Equal Protection Clause and Title IX, which bans sex-based discrimination in education programs.The appeals court said its ruling was strengthened by the Supreme Court’s 2020 decision in Bostock v. Clayton County. In that decision, the high court ruled Title VII’s ban on sex discrimination in the workplace protects gay and transgender workers.The Supreme Court in 2021 rejected an appeal from a Virginia school board after the Fourth Circuit backed Gavin Grimm, a transgender high school student in his fight to use the bathroom that corresponds with his gender identity.
These three points are each important:
First, the Seventh Circuit Order, as Bloomberg points out, merely affirmed a preliminary injunction saying that it was “likely” that the student would win her case. Now the case goes back to the Indiana federal trial-level court for further litigation and trial. The school district could still win that case, at trial or on appeal of the trial results.
Second, the Seventh Circuit’s ruling is inherently weak because it relied on Bostock. In that case, as Bloomberg correctly points out, the Supreme court held for the first time that Title VII employment discrimination claims could be brought by transgender employees. But what Bloomberg omits to say is that Bostock expressly held that its ruling did not apply to any other transgender situation. From Bostock:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “‘discriminate against’” refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
So to the extent the Seventh Circuit relied on Bostock, it was mistaken to do so.
Third, Bloomberg points out that in a similar case in Virginia where the Fourth Circuit backed the transgender student, the Supreme Court also declined to review the case, making this the second time the Court has declined to review such a case.
But there is hope!
That is because there is a definite conflict, or “circuit split,” in how different U.S. Courts of Appeals handle this type of case.
As the “amicus“, or “friend of the court” brief submitted by the Thomas More Society points out, “sex” as defined by Title IX “means gender identity rather than biological sex” according to the Seventh and Fourth Circuit U.S. Courts of Appeals, whereas the Eleventh Circuit, covering Florida, Georgia, and Alabama, defines “sex” to mean biological sex for Title IX purposes. And the Eleventh Circuit case was decided en banc, meaning every active Circuit Judge on the Eleventh Circuit heard that case, elevating its importance.
And circuit splits are one of the main drivers for the Supreme Court to take a given case, so that the Justices can impart consistency across the country on legal issues.
So why the denial to take the case by the Court?
It is truly anybody’s guess, but my guess is that apart from the extremely small number of cases that the Court actually takes in a given year, the Court may be sensing the tremendous turmoil across the country regarding the rights of “transgender” students, both in the bathroom context but more importantly in the school sports context, and the Court may well be waiting for an appropriate time and case to grant review and weigh in on these critical issues.
They can’t stay silent forever when you have a definite Circuit split occurring and lower courts misinterpreting Bostock so completely.
We will, as always, keep you updated.
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