Anyone who expected SCOTUS to make a dramatic pronouncement on the subject of transgender access to public accommodations and privacy was likely disappointed in their non-ruling on the Pennsylvania school bathroom access suit this week. An unsigned order declining to take the case up (with no dissent noted) means that a previous ruling by the 3rd Circuit in favor of the school’s policy would remain in effect. This is being claimed as a victory for transgender activists, though there’s really nothing that’s been settled thus far. (USA Today)
The Supreme Court refused Tuesday to second-guess a Pennsylvania school district’s policy that allows transgender students to use bathrooms matching their gender identity.
The action, with no noted dissents, represented a victory for the transgender rights movement and a defeat for religious conservatives who say birth gender should determine which bathrooms and locker rooms students use.
The Boyertown Area School District was sued by six current and former high school students who objected to the rule on privacy grounds. The U.S. Court of Appeals for the Third Circuit ruled for the district last year.
How anyone views this as a “victory for the transgender rights movement” is something of a mystery. What the Supreme Court did was punt the issue. You may recall that they did almost the same thing when they were asked to overrule a lower court in Gavin Grimm’s case in Virginia. Rather than deciding one way or the other, they noted that the federal government policy from the Obama era had been rescinded by President Trump and tossed the entire case.
So the Supreme Court has had two bites at this apple thus far and has taken a pass both times. I suppose it’s fair to wonder if they are simply too afraid of public opinion to make a big ruling on a contentious issue, much the same as they have been on gun rights and abortion. But there remain too many of these cases working their way through the system in different parts of the country and producing a variety of results. You’d think they would have to make the call sooner or later.
But the more I think about it, it’s possible that we’re watching them act in a deliberative fashion. Perhaps there haven’t been enough circuit court rulings yet to get a sense of how divided the subject is. I’ve read arguments from people who claim that it’s not the court’s job to rule on issues of science, including medicine, and that’s why they don’t want to touch it. That’s an unsatisfying explanation, however. It may not fall to the court to decide how we define sex and gender, but it’s definitely their job to resolve disputes over how those definitions impact the lives of citizens when they are crafted into laws and public policy.
I remain hopeful that the court will eventually step up and bring some sanity back into this debate. But that day isn’t here yet so we’re stuck in the same quagmire we’ve been in for decades.