Supreme Court declines to review transgender bathroom case

Today, the Supreme Court denied the school board’s cert petition in Gloucester County School Board v. Grimm. That’s the case in which the Fourth Circuit ruled that the board violated the Equal Protection and Title IX rights of a female who identified as male when it assigned multi-user restrooms on the basis of sex and made single-user restrooms available to all students.

Only Justices Thomas and Alito dissented from the denial of cert. All three Justices appointed by Donald Trump — Gorsuch, Kavanaugh, and Barrett — went along with the decision not to review the case.

Trump strongly criticized George W. Bush for appointing John Roberts to the Court. But Bush, in two tries, succeeded in nominating one very strong and reliable conservative Justice — Samuel Alito. It’s far from clear that Trump was able to do so in three tries.

Ed Whelan made the case for granting cert in the Gloucester County case here. It’s true, however, that there isn’t yet a split on this issue among the circuit courts of appeals. The absence of such a split, though not dispositive, provides a basis for denying cert.

Whelan urges the Fifth Circuit to review en banc the divided panel decision in Adams v. School Board of St. Johns County. As in Gloucester County, the panel in Adams ruled that a school board violated the Equal Protection and Title IX rights of a female who identifies as male by barring her from using the boys’ restroom.

If the Fifth Circuit reviews that decision en banc and overturns the panel’s decision, this would create a split between the Fourth and Fifth Circuits on the issue. That, in turn, would increase the likelihood that the Supreme Court takes up the matter.

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