The armies of the woke will no doubt be marching in victory after yet another flawed ruling from the 4th Circuit Court of Appeals regarding transgender issues. In a case that has been going up and down the judicial ladder for several years now, the court ruled in favor of Gavin Grimm, the former Gloucester County, Virginia transgender high school student who sued to be allowed to use the boys’ bathrooms, locker rooms, showers and other facilities despite being a biological girl. (Or, let’s be honest… a girl.) The last time the Supreme Court had this case dumped in its lap, the justices declined to rule because the Trump administration had rescinded the Obama-era Department of Education mandate upon which the Gloucester County school board had based its rules.
So why did the 4th Circuit get another bite at the apple? After SCOTUS sent it back to them for a fresh look, the Supremes delivered their incredibly flawed and poorly worded 6-3 ruling in Bostock v. Clayton County, Georgia. Two of the three judges in this week’s case latched onto that ruling as a basis for their decision, joyously declaring that their answer in Grimm’s case was “resoundingly yes.” (Politico)
A federal appeals court dealt a major victory Wednesday for proponents of transgender rights, ruling that it is unconstitutional and a violation of Title IX for schools to bar students from using the bathroom that matches their gender identity.
The 4th Circuit Court of Appeals ruled in favor of Gavin Grimm, the transgender man who sued his Virginia high school for barring him from using the boys restroom. The long-running legal fight has become a flashpoint in the battle over LGBTQ rights in education.
The appeals court previously backed Grimm in 2016. The Supreme Court was set to hear the case in 2017 but sent it back to the lower courts after the Trump administration, during President Donald Trump’s first months in office, revoked Obama-era guidance on the rights of transgender students.
First of all, I will note that Politico quickly jumped on the “resoundingly yes” theme for the title of their piece, but that’s simply hype. This is the same three-judge panel who ruled on it last time and the same two Obama appointees voted in favor of Grimm and the same Bush 41 appointee dissented. Nothing has changed.
The important point here, however, is the fact that this is the third ruling we’ve seen where appellate courts have latched onto Bostock v. Clayton County and attempted to vastly expand it. The damage that both John Roberts and Neil Gorsuch did with that ruling is rapidly becoming evident. Until that ruling, the Supremes had been dodging the entire transgender question like turkeys the week before Thanksgiving. In Bostock, however, SCOTUS ruled that employers couldn’t discriminate against transgender employees based on their “gender identity.” As I wrote at the time, that much should have been obvious. As long as the worker is qualified for the position and performing adequately, how they dress (within reasonable limits of professional standards appropriate to the position), what they call themselves or what they do in their free time is up to them. Firing them on that basis alone is clearly discriminatory.
But the justices screwed the pooch when they decided to define such guidelines as a prohibition against “workplace discrimination on the basis of sex” and extend the word “sex” in that case to include “gender identity.” And now we have lower courts pouncing on that wording to claim that the definition of the word “sex” has been changed by our highest court.
The problem is that these bathroom policy cases (and others) are almost entirely unrelated to the matter being decided in Bostock. That case only clarified that a person couldn’t be dismissed from a job based on their transgender status. Nobody was attempting to kick Gavin Grimm out of the school. In fact, they altered their policies to provide both single-user and unisex bathrooms for those who chose to use them. At the heart of Grimm’s case was the question of whether or not children – particularly young girls – have the right to privacy when they may be disrobing and to not be subjected to the presence of students of the opposite gender while doing so.
The ruling in Bostock said absolutely nothing about whether the employee at the heart of the case was technically one sex or the other. It also said absolutely nothing about expanding the definition of either “sex” or “gender” to include how people “feel” about their identity or the medical science behind the question. But the 4th Circuit has picked up on that error by Roberts and Gorsuch and run with it. The same happened in the 11th Circuit case of a transgender Florida teenager earlier this month. Bostock was also invoked this month in an Idaho case where a federal judge ruled that boys can’t be barred from competing in girls’ sports if they claim to be female.
Roberts and Gorsuch opened the floodgates to this debacle and now activists are finding judges willing to help them rush through the breach. One or more of these cases most certainly need to reach the Supreme Court for further clarification. If there’s any common sense left in the world, the justices will be able to undo some of the damage they did in the Bostock ruling.
EDIT: (Jazz) Original article corrected to note that Neil Gorsuch, not Kavanaugh, joined Roberts in the Bostick decision. An error I can only attribute to advanced age. Perhaps I should have run for the Democratic nomination.