Supreme Court may resolve transgender bathroom and locker room access.
An Amicus Curiae brief may hold the answer.
An interesting post popped up over at Glenn Reynolds’ long-running blog Instapundit related to transgender/Title IX access cases ping-ponging through various federal circuit courts.
HOT! HOT! HOT!: The Supreme Court will soon have the opportunity to resolve a conflict in the Circuits about whether Title IX requires school to assign transgender students to the showers, locker rooms, and bathrooms reserved for the sex they psychologically identify with (rather than their biological sex). Here is the amicus curiae brief that Joe Bingham, Pete Kirsanow, Dan Morenoff and I just filed. This is a very winnable case (even in the face of Bostock). Here’s hoping the Court takes the case.
For those unfamiliar with Heriot, she is a law professor at the University of San Diego School of Law and a current member of the United States Commission on Civil Rights. Read her bio.
The Brief
Description: Brief of the American Civil Rights Project as Amicus Curiae Supporting the Petitioner in Metropolitan School District of Martinsville v. A.C. a Minor Child by his Next Friend, Mother, and Legal Guardian, M.C., (No. 23-393) (cert. stage).
Abstract: This brief explains why Title IX should not be interpreted to require federally funded schools to assign transgender students to the showers, locker rooms, and bathrooms of the sex they psychologically identify with (rather than those of their biological sex). It also explains why Title IX should not be interpreted to prevent schools from doing so.
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More To The Story
Highlights & Key Sections
The brief makes mention of the Bostock ruling, which is oft-cited by plaintiffs pressing for transgender students to use whatever facilities they want based on how they “identify.” It’s also been used by the Biden administration related to Title IX, created to protect individuals (mainly women) from discrimination based on sex in education programs or activities that receive federal dollars.
Bostock was three cases consolidated and ruled on together by the U.S. Supreme Court on June 15, 2020. All three dealt with workplace issues under Title VII of the Civil Rights Act of 1964 (Title VII) which includes employment discrimination.
The Bostock ruling, authored by Justice Neil Gorsuch, held that terminating an employee solely based on their sexual orientation or gender identity constituted a violation of Title VII of the Civil Rights Act of 1964. To access the case history and ruling, visit SCOTUSBlog.
Here's the meat:
"Indeed, as the Eleventh Circuit has held, § 1686 and the 1975 Regulation permit schools to maintain separate intimate living facilities (specifically, separate bathrooms, locker rooms, and showers) for the two sexes. Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, at 811-15 (11th Cir. 2022). Simply put, no one has ever contended that Title IX requires every school in America to host the shower scenes from Starship Troopers.
That includes this Court’s Bostock majority. Bostock was a Title VII case. It did not hold that when Title VII says “sex,” it really means “sex or sexual orientation or gender identity.” To the contrary, it held that Congress’s prohibition on sex discrimination prohibited discrimination based on sex – “an employer who fires a transgender person who was identified as a male at birth but who now identifies as female” while “retain[ing] an otherwise identical employee who was identified as female at birth . . . penalizes” the fired employee “for traits or actions that it tolerates in an employee identified as female at birth. [That] employee’s sex plays an unmistakable and impermissible role in the discharge decision.” Bostock, 140 S.Ct. at 1742.
[…]
"The transgender plaintiff prevailed in Bostock precisely because, however, the plaintiff “identified,” the plaintiff’s sex had not changed. Title VII only applied because an employer who fires a biological male employee who identifies as a woman, that would not have fired a biological female employee identifying as a woman, definitionally makes the fired employee’s sex a “but-for cause” of the termination. Bostock, 140 S.Ct. at 1741-42.
The plaintiff’s gender identification was relevant only as a behavior the employer accepted from a woman, but not from a man, not as an additional form of discrimination whose prohibition had been newly discovered in Title VII’s 56-year-old text. Id. at 1739 (noting that “The only statutorily protected characteristic at issue in today’s cases is ‘sex,’ ” and stipulating that “sex” in Title VII “refer[s] only to distinctions between male and female” (emphasis added))."
The conclusion brings it home, underscoring Bostock has been misinterpreted.
“The Fourth and Seventh Circuits have relied on a misreading of Bostock to adopt a logically untenable version of Title IX. For reasons that we will be happy to brief once review is granted, they have also wrongly extended this Court’s equal protection jurisprudence to impose their preferred policy answer in a debate that the Constitution does not resolve. They were wrong to do both. The Court should grant the petition for certiorari in order to reverse the Seventh Circuit on the merits and restore the rule of law to this divided area.”
In short, the brief takes a match to the use of the Bostock ruling as applied to Title IX by underscoring that the Bostock majority did not interpret "sex" to include "sexual orientation or gender identity." Instead, it emphasized that discrimination based on sex in a work setting includes situations where an employer penalizes a transgender person for traits or actions tolerated in employees of the opposite sex identified at birth.
If SCOTUS takes up the case, the brief makes a good case and could have implications beyond bathroom access, such as the incursion of males claiming to be females entering into and dominating women’s sports.