Supreme Court Declines to Hear Case on Transgender Restroom Usage
Posted on February 29, 2024
Important takeaways: The United States Supreme Court declined to hear a case regarding transgender restroom usage in schools. The issue in the case was whether Title IX or the Equal Protection Clause of the United States Constitution bars school districts from requiring students to use the restroom aligned with their “biological sex.” There have multiple circuit court decisions on this issue, but the Supreme Court has yet to weigh in.
Facts: In August 2023, the 7th Circuit upheld a preliminary injunction that allowed three transgender students in a district to use the restroom aligned with their gender identity. The 7th Circuit held that Bostock, holding that “sex” discrimination includes discrimination based on gender identity under Title VII, also applies to Title IX. This means that discrimination on the basis of gender identity is prohibited under Title IX. The court held that the students were likely to be successful on the merits because they were discriminated against on the basis of sex by not being allowed to use their preferred restroom. The students were also likely to experience irreparable harm by not being allowed to use the restroom aligned with their gender identity. There is a strong public interest in favor of protecting civil and constitutional rights, and the court could see no harm to the public.
The American Civil Liberties Union (ACLU), representing the students, urged the Court not to take up this case in their briefing on the issue. The ACLU pointed out that the United States Department of Education is finalizing updated Title IX regulations that would endorse the view that schools may not prevent transgender students from using restrooms that correspond to their gender identity. Since the Supreme Court did not take up this issue, there is still a Circuit Court split and districts are left with what their circuit has decided until the Supreme Court finally makes a ruling on this issue.
In 2020, the 4th Circuit Court of Appeals held that a policy requiring a student to use a particular restroom violates Title IX and the Equal Protection Clause. That case is called Grimm v. Gloucester County School Board.
Also in 2020, the 9th Circuit Court of Appeals held that a school district’s policy of allowing transgender students to use restrooms aligned with their gender identity did violate the Fourteenth Amendment or Title IX rights of other students. That case is called Parents for Privacy v. Barr.
In 2023, the 11th Circuit became the first to hold that a school district does not have to allow transgender students to use a restroom that aligns with their gender identity. This court held that a policy that requires students to use the restroom aligned with their biological sex passed intermediate scrutiny because the objective of the policy is to protect students’ privacy rights in restrooms and the policy is substantially related to that objective. They disagreed that the definition of “sex” included gender identity under Title IX, and distinguished this case from Bostock. That case is called Adams v. School Board of St. John’s County.
What this means: While there is still a federal circuit court split, the 9th Circuit, where Montana is located, has upheld policies allowing students to use the restroom that aligns with their gender identity. If and when new Title IX regulations are released, they could clarify whether the definition of “sex” under Title IX includes gender identity, prohibiting discrimination based on gender identity. If the new regulations do not clarify this issue, the federal circuits will continue to be split until the Supreme Court decides to make a decision.
For now, districts should follow the ruling of the circuit they are located in and continue to wait for updates in caselaw and federal regulations.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, Kevin, and Kali at 406-542-1300 to discuss these issues.
