Will the Supreme Court simply duck the transgender bathroom issue?

We have a decision coming up soon from the Supreme Court regarding the case of Gavin Grimm, the young lady from Gloucester County, Virginia who “identifies” as a boy and has sued the school district over transgender access to the restrooms, showers and locker room facilities. But at this point it’s not a decision as to who will prevail. The Supremes must first decide whether they will hear the case at all. Thus far, being one justice short, they have primarily agreed to hear the more wonky, technical cases which would render very narrow decisions rather than sweeping policy issues which could potentially affect broad segments of society.

But this question has been eating up the news cycle around the nation for a long time now and there are multiple, high profile cases pending in the lower courts. Will they rule on the intersection of issues of gender and privacy once and for all? Lawrence Hurley at Reuters finds reason to believe that the justices will simply take a pass on it.

There are several reasons why the court could turn away the appeal, including the fact that there are other cases on the same issue pending in lower courts, meaning the justices could weigh in at a later date.

In one of those cases, a U.S. district court judge on Aug. 22 issued a nationwide injunction sought by Texas and 12 other states preventing the Obama administration from enforcing guidance telling schools to allow transgender students to use the bathroom of their choice.

The Supreme Court often lets novel legal issues like transgender bathroom rights percolate in lower courts before taking a case, as it did with gay marriage before ruling in 2015 to allow it nationwide.

The Supreme Court also frequently refuses to take cases in which the various regional federal appeals courts have not issued conflicting rulings. The ruling by the 4th U.S. Circuit Court of Appeals was the first of its kind.

Traditionally one of the best ways to get the Supreme Court to pass on something was for the lower courts to agree on it. If there’s no real dispute – particularly across different regions of the country – there’s no pressing need for the highest court to decide the matter. Alternatively, they could hear such a case and simply agree with the lower courts’ findings to codify the result. That’s obviously not the case here. Gavin Grimm may have won a temporary victory from the 4th Circuit Court of Appeals, but a second case out of Texas went the other way, striking down such gender bending access. More cases in the Midwest and deep south are also pending.

Shouldn’t this be precisely the sort of case the Supreme Court would take up? What’s perhaps most disappointing here is the unspoken excuse that they’re waiting for the ninth seat to be filled. It’s as if they’ve already decided that four of them would vote on each side of this question and they need a tiebreaker to come in and settle the matter for everyone. (Why that’s a given when we still don’t know Kennedy’s feelings on the matter is a mystery to me.) You might think that a basic question of science which can be resolved with a simple DNA test would be an easy enough issue for them to tackle, but this is no longer about science or the law or even common sense. It’s pure politics at the high court and nothing more.