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SCOTUS passes up the opportunity to address circuit split over transgender restroom use

1/29/24

By: Christian E. Foy Nagy, Esq. and Kelly Mahoney Haas, Esq.

We learned this month that an issue of pervasive interest to politicians and activists of all persuasions was not so compelling to merit review by the United States Supreme Court. On January 16, 2024, the Supreme Court of United States denied certiorari in Metro. Sch. Dist. of Martinsville, Petitioner, v. A.C. by next friend M.C., Case No. 23-392, declining to address the contested issue of whether schools can deny gender-affirming facility access to transgender students. The denial of cert means that divergent positions in the Fourth, Seventh, and Eleventh Circuits will continue to be unresolved for the foreseeable future.    

An Indiana school district filed the petition seeking review of the Seventh Circuit’s determination that the refusal to permit a transgender male student to use the boys’ bathroom violated Title IX and the Equal Protection clause of the Fourteenth Amendment. In A.C. by next friend M.C. v. Metro. Sch. Dist. of Martinsville, student A.C. asked to use the boys’ restroom because going to the more distant single-user restroom caused him to be late to class. The school district denied the request. A.C. then filed suit alleging unlawful discrimination in violation of both Title IX and the Equal Protection Clause. The U.S. District Court for the Southern District of Indiana granted A.C.’s motion for preliminary injunction permitting him the right to use the boys’ restroom and the district appealed. Twenty-one states and the District of Columbia filed an amicus brief in support of A.C. and nineteen states joined an amicus brief in support of the school district. Following consolidation with a similar case brought by two transgender high school students seeking access to both restrooms and locker rooms (excluding showers), the Seventh Circuit affirmed the injunction enjoining the school district from restricting A.C.’s use of boys’ facilities. A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir. 2023).  

Judge Easterbrook’s concurrence invited review by SCOTUS, noting that “[a] conflict among the circuits will exist no matter what happens in the current suits. The Supreme Court or Congress could produce a nationally uniform approach; we cannot.” The school district’s petition highlighted the split, framing the question for review as “[w]hether Title IX or the Equal Protection Clause dictate a single national policy that prohibits local schools from maintaining separate bathrooms based on students’ biological sex.” The divergence in decisional authority is fairly recent. The Fourth Circuit determined in 2020 that denying gender-affirming bathroom access can violate both Title IX and the Equal Protection Clause. Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020). Conversely, the Eleventh Circuit found no violations on substantially similar facts. Adams ex rel. Kasper v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc). As they did in the Court of Appeals, nineteen state attorneys general joined an amicus brief in support of the district’s petition—to no avail. 

We can only speculate as to the reasons, but the Supreme Court appears in no hurry to create a national uniform rule. With the denial of certiorari, the circuit split remains unresolved and the proverbial can (no pun intended) of a national uniform approach to transgender bathroom use in schools has been kicked down the road.   

For more information, please contact Christian E. Foy Nagy at christian.nagy@fmglaw.com, Kelly Haas at khaas@fmglaw.com, or your local FMG attorney.