Eleventh Circuit Should Grant En Banc Rehearing in Transgender Bathroom Case

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In an order today, the Supreme Court denied Gloucester County School Board’s certiorari petition in Gloucester County School Board v. Grimm. Only Justice Thomas and Justice Alito stated that they would grant the petition.

For the reasons I outlined in this post from last week, I think that the denial of certiorari is a grave mistake.

The Court’s denial of certiorari—which of course is not an affirmance of the Fourth Circuit’s misguided decision—makes it all the more important that the Eleventh Circuit grant the pending petition for en banc review of the divided panel decision in Adams v. School Board of St. Johns County. Like the Fourth Circuit panel majority, the Eleventh Circuit panel majority ruled that a school board violated the Equal Protection and Title IX rights of a transgender student—a girl who identifies as male—by barring her from using the boys’ restroom. As Chief Judge William Pryor put it in his excellent dissent:

The majority transforms an appeal that it should have resolved with straightforward applications of intermediate scrutiny and statutory interpretation into something unrecognizable. Almost no aspect of its analysis emerges unscathed. The majority misunderstands the policy at issue, ignores decades of precedent, dismisses any sex-specific interest in bathroom privacy, and flouts foundational principles of statutory interpretation. In the process, it issues a holding with radical consequences for sex-separated bathrooms. But for all of its errors, the majority opinion cannot obscure what should have been the bottom line of this appeal: there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.

Lawyers for the transgender student will likely argue that the Supreme Court’s denial of Gloucester County’s certiorari petition somehow means that the Eleventh Circuit should deny St. Johns County’s petition for en banc review. But it’s far more likely that some of the justices who voted to deny certiorari did so because St. Johns County’s petition was still pending and it therefore wasn’t yet clear whether there would be a conflict among the circuits.

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