South Carolina asked the Supreme Court to allow it to enforce state law — and President Trump’s directive — to have school bathroom use based on biological sex.
In a dispute involving a ninth grade transgender boy, the state has asked the justices to block an injunction issued by lower courts ordering that the boy — identified in court documents as “John Doe” — be able to use the bathroom of his preferred gender.
But the state’s fiscal appropriations law requires a district to comply “with a requirement that it designate its multi-occupancy public school restrooms for use only by members of one sex, and that it limit entry into such restrooms to members of the designated sex” in order to receive some of the public funding.
South Carolina also argues that the U.S. Department of Education has found that schools violate Title IX of the Education Amendments of 1972 if they allow students to use restrooms, locker rooms and intimate facilities based on gender identity.
Though the injunction only applies to the one school and transgender student, the state contends the lower court’s order is putting the school district in a difficult position.
“It’s now stuck between an impossible rock and hard place. On the one hand, the Executive Branch demands, on pain of loss of federal funding, that schools apply Title IX as originally understood,” the state’s filing read. “On the other hand, the Fourth Circuit has required Applicant Berkeley County School District to do exactly the opposite.”
The 4th U.S. Circuit Court of Appeals, which hears disputes out of West Virginia, Virginia, Maryland, North Carolina and South Carolina, relied on Grimm v. Gloucester County School Board where in 2020 the 4th Circuit sided with a transgender boy arguing that his school violated the Equal Protection Clause of the Constitution by not allowing him to use the bathroom of his choice.
The justices refused to hear an appeal in the case, which left the 4th Circuit decision intact.
South Carolina, though, wants the Supreme Court to look to United States v. Skrmetti, where the justices ruled earlier this year for Tennessee, which passed a law barring medical treatment — like puberty blockers — for transgender youth.
“Grimm is irreconcilable with Skrmetti. Even if Grimm were precedential for the Fourth Circuit, the facts and science underlying Grimm are not analogous to this case, nor are they persuasive. This Court should not allow the Fourth Circuit to apply Grimm here,” South Carolina argued.
But lawyers representing “John Doe” say that the government is not harmed by the injunction and the justices should let the dispute play out in court before weighing in.
“It is little wonder, then, that the government is unable to identify a single concrete injury it would suffer absent a stay from this Court. By contrast, John desperately needs the Fourth Circuit’s injunction ‘to perform a basic bodily function at school without the state’s interference,’” the student’s filing read.
His lawyers also say the justices just took up two somewhat related cases.
They’ll hear West Virginia v. B.P.J. and Little v. Hecox, which have to do with West Virginia and Idaho adopting laws that ban trans-students from girls’ sports. Two transgender athletes challenged the state laws based on a violation of the Equal Protection Clause of the Constitution, which requires the government to treat everyone similarly.
“The Court should refuse the government’s […] invitation to provide ‘a merits preview … on a short fuse without benefit of full briefing and oral argument,” the student’s filing said.
The South Carolina legal battle is State of South Carolina v. Parents, Jim and Jane Doe.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.