SCOTUS barely dips a toe into the school transgender bathroom debate

We briefly touched on this case last summer as one of several “transgender bathroom” challenges making their way through the courts. Coming out of the Gloucester County, Virginia school district, the family of Gavin Grimm, a female student who “identifies as male,” challenged a school policy designed to protect the privacy rights of students using school bathrooms, locker rooms and showers. The policy directed the students to use facilities correlating to their actual gender, but made allowances for those claiming a different gender (in defiance of biology) by allowing them to access unisex, single user restrooms. This wasn’t good enough in the era of You Will Be Made To Care, so off to court they went.

The first ruling from a lower court sided with the student’s family and ordered the school to abandon the policy. But now – at least for the time being – the Supreme Court has set aside that ruling and will allow the policy to remain in force while the case finishes making its way through the system. (CNN)

A divided Supreme Court agreed Wednesday to temporarily block a lower court order that had cleared the way for a transgender male high school student to use the boys’ bathroom in a Virginia public school this fall.

The ruling is a victory for the school board and a loss — for now — for Gavin Grimm, the student who won at the lower court level.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would have left the lower court decision undisturbed. It took five justices to act, and Justice Stephen Breyer wrote separately to say that he concurred in the decision in part because granting the stay would “preserve the status quo” until the court has a chance to consider a petition for cert. “I vote to grant the application as a courtesy,” Breyer wrote.

Unfortunately, this is nothing for traditional privacy advocates to get terribly excited about. While Roberts, Alito, Thomas, and Kennedy voted to set aside the lower court ruling, the only reason they carried the day was the very provisional “courtesy” application grant from Breyer. It’s obvious that Kagan, Ginsburg and Sotomayor were ready to rush headlong into a ruling in favor of the liberals as always and there’s no reason to believe that Breyer won’t do so as well once the full case is heard. That would leave us no closer to a final resolution than we are now unless Antonin Scalia’s seat is filled, and if it winds up being Hillary Clinton who nominates the replacement, not much imagination is required to predict how that will turn out.

This is yet another one of these 21st century questions which the founders never even imagined coming up, so guidance in the actual Constitution is slim. Traditional values and our basic understanding of biology have little or nothing to do with the world view of the Social Justice Warriors and they clearly have a number of allies in the courts. There was a time when I was actually looking forward to this question being settled by the Supreme Court, but these days it’s looking more an more like a lost cause until such time that the nation begins to regain its collective grasp of reality and we return to electing leaders at the national level with a smidgen of common sense.


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Jazz Shaw 1:01 PM on December 09, 2022