Supreme Court Not Deciding for Now if Schools Must Embrace Transgenderism

The U.S. Supreme Court denied review of a case Monday asking if public schools need to embrace transgender policies, leaving in place a lower court’s decision requiring a Virginia high school to allow students to use bathrooms and shared locker rooms of whatever sex they identify with.

While clearly a setback to those who oppose such transgender policies, the Court may simply be waiting for a circuit split before it agrees to review the case, according to attorneys who spoke with Breitbart News.

The question presented in this case is: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multiuser restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”

The U.S. Court of Appeals for the Fourth Circuit held that both Title IX of the Civil Rights Act and the Fourteenth Amendment’s Equal Protection Clause in the U.S. Constitution forbid schools from denying transgender students access to the restrooms assigned to the opposite biological sex.

The Supreme Court denied review of the case raising these issues, which leaves in place the decision by the Fourth Circuit as binding precedent in the five states that comprise that court, requiring public schools to embrace transgender policies as requirements of Title IX and the Fourteenth Amendment of the U.S. Constitution.

It takes four justices to grant review of a case—called a writ of certiorari. Of the nine Supreme Court justices, only Justices Clarence Thomas and Samuel Alito wanted to take the case.

While deeply disappointing to some, the denial of the review of the case, however, is not necessarily as bad as it might first appear for conservatives concerned about the transgender agenda being implemented in public schools.

Lawyers that spoke with Breitbart News said the Supreme Court could be waiting for what is known as a “circuit split,” before it grants review of this particular case.

They explained that out of the twelve geographical regions that appeals courts are divided into, the Supreme Court usually waits until two or more federal appeals courts must split in opposite directions on the same legal issue before weighing in to create a binding legal rule nationwide.

So far, only three federal appeals courts have weighed in on this case, but they have all come down in favor of the transgender challengers, meaning there is no circuit split at this time.

Lawyers that spoke with Breitbart News also pointed out that none of the circuits that have weighed in so far are considered conservative circuits, meaning it is very likely a circuit split will be created once the conservative circuits weigh in on the issue — which is what the Supreme Court could be waiting for in order to review the case.

In addition, President Biden issued Executive Order 13988 in January, ordering the U.S. Department of Education to adopt a formal rule declaring that Title IX’s use of the word “sex” includes gender identity. That rule was issued this month, and the justices might be waiting for a legal challenge to that nationwide interpretation of federal law, rather than a bathroom-use specific policy for a single local school district.

This case is Gloucester County School Board v. Grimm, No. 20-1163 in the Supreme Court of the United States.

You can follow Alana Mastrangelo on Facebook and Twitter at @ARmastrangelo, and on Instagram.