In an essay for First Things, JWI Trustee and Senior Scholar Gerry Bradley comments on the Supreme Court’s denial of certiorari in Gloucester County School Board v. Grimm. The case turns on whether Gavin Grimm, born a biological female, should be allowed to use the boy’s restroom, with the Fourth Circuit ruling in Grimm’s favor. Bradley laments the decision to not grant cert, and points to a similar bathroom case currently being heard in Florida as an opportunity for the Court to “stymie” the tide of identity ideology. He also suggests that the arguments for blocking the use of sex-separated bathrooms need to be refined in future litigation.
Some excerpts from the piece:
“What is the practical effect of the Supreme Court’s decision? In one sense, it is limited yet still significant. It leaves untouched some bad law now in force throughout the Fourth Circuit (comprised of Maryland, West Virginia, North and South Carolina, and Virginia). In another sense, the Court’s action is most fraught. The Fourth Circuit’s opinions reflect the same subordination of sound legal reasoning, common decency, and evidence-based science to an ideology of “identity” that infects other court opinions as well as legislative and administrative decisions on the subject. These harmful ideas are going to proliferate rapidly because the Biden Administration wants them to, and because the Court is unwilling, for now, to step in.”
“The Court’s power is asymmetrical. It is ample enough to protect school districts that do not (as in Grimm) open wide the bathroom doors against constitutional attack. The Fourth Circuit concluded in a few nearly unintelligible paragraphs that denying the boys’ room to Grimm amounted to unconstitutional sex discrimination. The Court could and should smite this derangement at the earliest opportunity.”
“On what sound basis might the Court do good? Likely on the basis of a right of privacy. The best statement of this argument so far has been Judge Paul Niemeyer’s dissent in Grimm 2.0. Niemeyer wrote: “An individual has a legitimate and important interest in bodily privacy that is implicated when his or her nude or partially nude body is exposed to others. And this privacy interest is significantly heightened when persons of the opposite biological sex are present.” It is further heightened, he wrote, “when children use communal restrooms and similar spaces, because children, as the School Board notes, ‘are still developing, both emotionally and physically.’”