Split rulings on transgender bathroom rules tee up Supreme Court review

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The Supreme Court could soon be forced to reckon with split lower court decisions over whether self-identifying transgender people can use public restrooms that don’t correspond with their biological sex.

That’s due in part to a decision last month in the U.S. Court of Appeals for the 11th Circuit, in which a 7-4 majority ruled the Atlanta-based St. Johns County School Board did not illegally discriminate against transgender student Andrew Adams when it disallowed the student from using the boys’ restroom at his high school.

The ruling against Adams stands in contrast to previous appeals court decisions in 2017 and 2020. In 2017, the 7th Circuit ruled in favor of transgender boy Ashton Whitaker, and in 2020, the 4th Circuit ruled in favor of Gavin Grimm, whose Virginia-based high school restricted Grimm from using the boys’ restroom.

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Justices declined to hear an appeal in Grimm’s case back in 2021. But if the 11th Circuit decision is appealed, justices might be forced to take up the issue after lower courts came up with conflicting outcomes.

Members of the high court have for years expected such a case to arise before them, especially Justice Sonia Sotomayor, one of the three liberal members appointed by former President Barack Obama, who said in 2019 oral arguments that disputes over transgender bathroom rules would be an “inevitable” question.

“Once we decide the case in your favor,” Sotomayor told a lawyer arguing a case about the rights of gay and transgender people, “then that question is inevitable.” The case in question was Harris Funeral Homes v. Equal Employment Opportunity Commission.

It was Justice Neil Gorsuch, an appointee of former President Donald Trump, who authored the majority opinion in that case in 2020, handing down a decision in favor of workers by holding that a federal civil rights law protects LGBT employees from discrimination by a 6-3 vote.

But Gorsuch made clear that the holding was narrow, noting that particular subjects, such as transgender bathroom disputes, were not being deliberated by the court’s holding. “We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote, adding that those “are questions for future cases, not these.”

Justice Samuel Alito, one of the most conservative members of the court, struck a similar tone as Sotomayor, acknowledging the justices could not push aside the question of transgender bathroom issues for much longer.

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“The court may wish to avoid this subject,” Alito wrote in his dissenting opinion, “but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.”

Despite the majority on the court denying to take up Grimm’s case in 2021, Alito and Justice Clarence Thomas made clear they were ready to take up the dispute.

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