Conservative court watchers are heartbroken to learn that the Supreme Court denied a petition to reconsider the appeal of the 4th Circuit Court of Appeals in Gloucester County School Board v. Gavin Grimman. This case concerns the access of biological girls to the boys' bathroom in one Virginia school district. It gives a victory to Grimm, a former student. This sets a poor precedent for students in federally funded schools who can use the bathrooms of their choice and misses an opportunity to clarify Title IX.The Supreme Court was somewhat jaded by the denial. Grimm's campaign for access to the bathroom began in 2015. In 2015, Grimm's campaign for bathroom access began.The lower court relied on an Obama administration Education Department interpretation of federal law, which stated that transgender students can use any bathroom they choose. However, they had not reached a substantive conclusion as to whether this interpretation was correct.Grimm's substantive victory is consolidated by the Supreme Court's refusal to review. In 2020, the 4th Circuit ruled that Title IX and Equal Protection Clause required schools to permit Grimm, a biological boy, to use the boys' bathroom. Grimm's legal rights were not protected by the school's provision of a separate, gender-neutral bathroom.Justice Clarence Thomas and Samuel Alito were two of the court's arch conservatives. They dissented, and would have allowed review. They may have rightly realized a missed opportunity to clarify Title IX's current mess of competing schemes and interpretation guidance.States, the Biden administration and individual school districts have all responded to President Joe Biden's executive order of January 20, which directed all federal agencies to include gender identity and sexual orientation in the interpretation and application the anti-discrimination law enforced by their respective agencies.The Supreme Court may not have the opportunity to review the Title IXs requirements only once. A Title IX lawsuit challenging sex segregated athletics is pending in 2nd Circuit Court of Appeals. This is after it was dismissed by a federal judge who expressed his political views on the transgender issue.A school district petition to the 11th Circuit Court of Appeals for a hearing in another case involving school bathrooms is also pending.If either the 2nd Circuit or 11th Circuits adopt a textualist approach Title IX, conflicting interpretations would provide another opportunity for Supreme Court to clarify whether its last term of sex in Anti-Discrimination Employment Law in Bostock v. Clayton County was expanded to include sexual orientations and gender identities.In fact, Justice Neil Gorsuch wrote for the majority in Bostock v Clayton County that Title VII's expansion of sex-discrimination to include transgender status and sexual orientation should not be taken to mean that it automatically applies to federal civil rights laws.BLOCK TEXTEmployers are concerned that the decision could be extended beyond Title VII to other federal and state laws that prohibit sex discrimination. They also claim that Title VII will make it impossible to maintain sex-segregated locker rooms, bathrooms, and dress codes after today's decision.We do not have any of these laws before us. We have not been through adversarial testing to determine the meaning of the terms.We also don't address locker rooms or bathrooms under Title VII. Only question is whether an employer who fires a person for being gay or transgender has discharged that employee or made any other discriminatory action against the individual due to their sex.END BLOCK TXTAccording to the Department of Education's Office for Civil Rights, the recent guidance makes it clear that Title IX's prohibition against sex-discrimination at educational institutions receiving federal funding, will continue to be applied until there is a change of administration or a Supreme Court review of the matter.The January executive order of the president and the Department of Education's guidance are silent about any enforcement actions that the agency may take against institutions who do not comply. Schools should expect future guidance from Education Department regarding how to comply with the new Title IX interpretation and what the consequences might be.Religious schools will still be able to benefit from the Title IX implementing regulations' religious exemption, but that exemption is being challenged in court by a class of students at religious colleges claiming that Title IX's religious exemption violates their right to equal protection.Do you have a comment about this article? Send us an email at [email protected] with your comments. We may publish them in our We Hear You section. Include the URL of the article or the headline, along with your name and the town/state.
