Supreme Court declines to hear Virginia school board's transgender bathroom case

WASHINGTON – The Supreme Court on Monday declined to wade into a dispute over whether schools may bar transgender students from using a bathroom that reflects their gender identity, permitting a lower court ruling against those prohibitions to stand.

At issue in the case was whether federal anti-discrimination law applied to LGBTQ students. Gloucester County School Board in Virginia argued its policy of requiring transgender students to use unisex bathrooms was permitted under a 50-year-old law that prohibits discrimination at schools that receive federal funding.

By not taking the case, the Supreme Court without comment let stand a ruling from the U.S. Court of Appeals for the 4th Circuit that found the school’s policy discriminated against Gavin Grimm, a transgender man who was denied access to the boys’ bathroom years ago when he was a high school student.

"I am glad that my years-long fight to have my school see me for who I am is over," Grimm said in a statement released by the American Civil Liberties Union, which represented him in the case. "Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials."

Neither the school district nor its attorneys responded to a request for comment.

Associate Justices Clarence Thomas and Samuel Alito said they would have taken the case, though they did not elaborate on their position. The Supreme Court did not rule on the underlying legal questions and experts say more cases involving transgender rights will arrive at the high court as conservative states pass a bevy of laws restricting those rights.  

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The case returned to the court at a time when the Biden administration is seeking to expand legal protections for transgender students. In one of his first executive orders, President Joe Biden said the federal government would seek to prohibit discrimination on the basis of sexual orientation and gender identity.

The Supreme Court agreed to hear the case once before, in 2016, based on guidance from the Obama administration that nudged schools to adopt policies favoring transgender students. But the court dropped the case months later, wiping out a lower court ruling for Grimm, when the Trump administration withdrew the guidance. Biden’s administration reinstated the Obama-era guidance earlier this month.

Grimm's case, meanwhile, continued to wind its way back through the federal courts , even as he graduated from high school and moved to California for college.   

In the meantime, the Supreme Court held last year that prohibitions on workplace discrimination on the basis of "sex" also extended protections to LGBTQ Americans. The legal fight between LGBTQ advocates and their opponents has since shifted to whether other laws that bar “sex” discrimination similarly protect people in other settings based on their sexual orientation or gender identity.

That debate featured prominently in Grimm's case.

Grimm was a rising sophomore when he changed his first name to Gavin and began using male pronouns. Officials at Gloucester High School were supportive, but blowback from parents prompted the school board to bar Grimm from the boys’ bathroom, directing him instead to unisex bathrooms – three of which were built in response to the controversy.

Grimm said the mandate made him feel "stigmatized and isolated." The unisex bathrooms were unavailable when he attended football games and afterschool activities. Grimm would often "hold it," leading to urinary tract infections. He sued in 2015, claiming the board’s policy violated Title IX and the 14th Amendment's Equal Protection Clause.

Though the ACLU and LGBTQ advocates applauded the court's decision as a victory, the legal ramification was less clear. Appeals courts in Chicago and Atlanta, as well as the 4th Circuit in Richmond, Virginia, have held that schools violate federal law when they prohibit transgender boys from using the same restrooms as cisgender boys. But  that legal question remains unsettled at the national level.

"The Supreme Court's decision to not hear the Grimm case is a victory for trans students and it might influence how some lower courts view similar cases," said Jami Taylor, political science professor at The University of Toledo and an expert on LGBTQ policies. "However, it does not set national precedent." 

That lack of clarity comes amid an onslaught of state laws attempting to limit transgender rights. Those include a Tennessee law requiring transgender students to compete in school sports according to their sex assigned at birth. Arkansas this year became the first state to ban gender-affirming treatments for transgender minors.