The Supreme Court may be forced to consider whether transgender people have the right to use public restrooms that correspond with their gender identity following a lower court decision.
Last month, a federal appeals court in Atlanta ruled that Drew Adams, a transgender boy, is not entitled to use the boys’ bathroom at his public high school in Florida. As the New York Times reports, the decision came down to a 7-to-4 vote, with all seven of the court’s Republican-appointed judges voting in the majority and the four Democrat-appointed judges dissenting.
That decision conflicts with previous appeals court rulings in 2017 and 2020. In the 2017 case, the federal appeals court in Chicago ruled in favor of a transgender boy. In 2020, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Gavin Grimm, whose Virginia high school banned him from using the boys’ restroom. In 2021, the Supreme Court declined to hear an appeal in Grimm’s case. But if last month’s decision is appealed, the court may have to take up the issue due to the conflicting decisions of the different courts.
The Supreme Court touched on the bathroom issue in 2019 during arguments for Bostock v. Clayton County. That case involved whether Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation and gender identity. During arguments, five of the justices brought up the issue of bathroom access, despite the fact that the case had nothing to do with the issue, with Justice Sonia Sotomayor calling the question “inevitable.”
Ultimately, the court ruled that employment discrimination on the basis of sexual and gender identity violates Title VII. But writing for the 6–3 majority, Justice Neil Gorsuch made it clear that the ruling did not address the question of bathroom or locker room access for transgender individuals.
“The court may wish to avoid this subject,” Justice Samuel Alito wrote in his dissenting opinion, “but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.”
Both Alito and Justice Clarence Thomas were ready to take up the appeal in Grimm’s case in 2021.