Grimm Indeed

On June 28, the Supreme Court declined to hear the case of Gloucester County School Board v. Grimm. It takes four justices’ votes to grant review. In Grimm there were just two—those of Clarence Thomas and Samuel Alito. So the best-known and longest-running of the “transgender bathroom” cases has ended with a whimper. 

The case started in 2015 when Gavin Grimm, a rising sophomore at a highschool in Virginia's Gloucester County, objected to the school's requirement that every student use the bathroom corresponding to his or her sex. In Grimm’s case, that was the girls’ restroom, for she was enrolled in school as the biological female that she is.

The school tried to accommodate Grimm. It permitted Grimm to present as a boy and to use the bathroom in the nurse’s office. It even built several unisex restrooms. But the school did not give Grimm access to the boys’ bathroom, which Grimm demanded but which parents of other students opposed (note, by the way, that Grimm had not had any surgeries).

In 2016, the Fourth Circuit Court of Appeals sided with Grimm. The decision owed much to an opinion letter of the Obama Administration’s Department of Education. The letter said that “[w]hen a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Gloucester schools sought Supreme Court review, and got it. But the Court later backtracked. Because the Trump Administration had rescinded the Obama instruction on which the lower court had relied, in 2017 the justices sent the case back to the Fourth Circuit for another go, and in 2020, the Fourth Circuit again sided with Grimm. The court’s pre-analytical sympathies are apparent early on in the opinion:  

When Gavin Grimm was born, he was identified as female, and his sex so indicated on his birth certificate. But Grimm always knew that he was a boy. For example, when given the choice, he would opt to wear boys’ clothing. He recounts how uncomfortable he was when made to wear a dress to a sibling’s wedding. Grimm also related to male characters, and he felt joy whenever he was “mis”-identified as a male—whether by an adult lining children up in “boy-girl” fashion, or by a good friend who recognized that Grimm was male.

It is tempting to speculate as to why the Supreme Court declined to review Grimm 2.0 when it did not decline Grimm 1.0, especially since the Biden Administration announced on June 16 that it would (in effect) reinstate the Obama Administration directive that played such a big part in the first round. This temptation should be resisted. Supreme Court decisions about granting review are always obscure. And the Court of March 6, 2017 (the backtracking date), was a very different Court than that of June 28, 2021. Justices Gorsuch, Kavanaugh, and Barrett have replaced Justices Scalia, Kennedy, Ginsburg. The truth is, we just don’t know why they declined to grant review.

What is the practical effect of the Supreme Court’s decision? In one sense, it is limited yet still significant. It leaves untouched some bad law now in force throughout the Fourth Circuit (comprised of Maryland, West Virginia, North and South Carolina, and Virginia). In another sense, the Court’s action is most fraught. The Fourth Circuit’s opinions reflect the same subordination of sound legal reasoning, common decency, and evidence-based science to an ideology of “identity” that infects other court opinions as well as legislative and administrative decisions on the subject. These harmful ideas are going to proliferate rapidly because the Biden Administration wants them to, and because the Court is unwilling, for now, to step in.

The Supreme Court should nevertheless do what it can to stymie this budding carnival as soon as possible. A “bathroom” case from Florida (in the Eleventh Circuit) is probably the best vehicle. Depending on the next step in that lower appellate court, that petition for review could arrive within a couple months, or a year from now.  

The questions at hand concern whether the Court can stanch the damage. How much authority does the Court have over these “bathroom” cases, and on what sound reasoning would the Court use that authority for good? 

On the first question: The Court’s power is asymmetrical. It is ample enough to protect school districts that do not (as in Grimm) open wide the bathroom doors against constitutional attack. The Fourth Circuit concluded in a few nearly unintelligible paragraphs that denying the boys’ room to Grimm amounted to unconstitutional sex discrimination. The Court could and should smite this derangement at the earliest opportunity.  

Unfortunately, the judicial arsenal was severely depleted last summer with Bostock, which held that discrimination against anyone for being “transgender” is perforce sex discrimination. Bostock was an employment case. But courts have eagerly applied it in the bathroom cases (as the Fourth Circuit did in Grimm 2.0), on the view that if “sex” equals “transgender” in one part of the civil rights law then it does in other parts, too. If the Biden Administration makes receipt of federal dollars conditional on, for example, treating Grimm as a boy, then that is what schools are going to have to do—unless there is a constitutional blocker in the way. So, too, the Court’s power to rein in more woke school districts is limited—unless there is a constitutional bar to opening up the middle-school girls’ bathroom to guys. Several have been pressed in the “bathroom” cases; among them are claims grounded in parents’ rights, in the Free Exercise of religion, and in other First Amendment freedoms. None has succeeded in litigation. 

Hence, the second question: On what sound basis might the Court do good? Likely on the basis of a right of privacy. The best statement of this argument so far has been Judge Paul Niemeyer’s dissent in Grimm 2.0. Niemeyer wrote: “An individual has a legitimate and important interest in bodily privacy that is implicated when his or her nude or partially nude body is exposed to others. And this privacy interest is significantly heightened when persons of the opposite biological sex are present.” It is further heightened, he wrote, “when children use communal restrooms and similar spaces, because children, as the School Board notes, ‘are still developing, both emotionally and physically.’”

Just so. Going forward, this argument needs to be sharpened and strengthened.

Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.

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