The question has been asked so many times its repetitions amount to a roar: Do transgender students have a constitutional right to use the school bathrooms that align with their gender identity?
The U.S. Supreme Court declined Tuesday to answer the question by denying the petition of an Indiana school district pleading for national uniformity on the bathroom question.
The Metropolitan School District of Martinsville’s failed petition came after the district lost its Seventh Circuit appeal, in a case where a middle-school transgender boy, identified as A.C., sued for the right to use the boys’ bathroom.
Similarly, the U.S. Supreme Court in 2021 declined to hear a school district’s bathroom-case appeal against a high-school age transgender boy, Gavin Grimm.
Both denials cement transgender-rights wins in the Seventh and Fourth Circuit Courts, for now.
But the question may surface again, since the 11th Circuit Court of appeals went the opposite direction in a ruling in late 2022.
Far From Decided
Ernie Trakas, a family rights attorney who stays keen on transgender-issue cases, told Cowboy State Daily the high court will address the bathroom question – when it’s ripe.
“This is a national issue that is going to continue to percolate, and at some point the Supreme Court is going to have to weigh in,” Trakas told Cowboy State Daily on Tuesday. “Whether on statutes, whether it’s on the interpretation of (federal education statute) Title IX – whatever it could be. So, I just think it’s a question of when, not if.”
With the 11th Circuit being the only federal appellate court proclaiming that neither the 14th Amendment and Title IX confer a right to cross-sex bathroom access, the Supreme Court may be waiting for more disagreement before it intervenes, Trakas said.
“The decision today and their refusal to take (the case), I think it’s reflective of, there’s not a sufficient split in the circuits, or the issue is not ripe yet for the Supreme Court,” he said.
Trakas is representing two Rock Springs parents who are suing their school district on allegations that the district helped gender-transition their child behind their backs.
That case, Willey v. Sweetwater County School District No. 1, has reached the discovery phase and may brew for at least a year before the U.S. District Court for Wyoming sees a decision on it, Trakas said.
Into The Fray
With a split between the federal circuits and the U.S. Supreme Court staying its hand, Wyoming could soon delve into the legal fray of states challenging the federal government’s attitude on transgender access to sports, bathrooms and medical treatments.
Wyoming has avoided national-stage disputes on the issue so far.
Wyoming did not join 18 Republican-led states last year in arguing against Medicaid-funding requirements for sex-change treatments for kids.
Wyoming also did not join 20 red states in suing President Joe Biden’s Department of Education in 2021 over the department’s reinterpretation of Title IX.
Citing a U.S. Supreme Court case forbidding employers from firing their employees for being transgender, the Department of Education announced a ban on transgender-based discrimination in schools — including in bathrooms and sports.
Wyoming stayed out of the case because it had no laws conflicting the federal agency’s new interpretation at the time.
But that changed in 2023, when the Wyoming Legislature passed a law banning transgender girls from competing in girls’ school sports from seventh through 12th grade.
What Is A Woman?
State Rep. Jeanette Ward, R-Casper, is now proposing the What Is A Woman Act ahead of the state’s 2024 legislative session.
The bill proposes to categorize people according to their biological sex under all state laws, rules and regulations, and for the purposes of vital records.
If it becomes law, the What Is A Woman Act cannot bar sororities and other private groups from admitting transgender members, because the U.S. Supreme Court decided in Boy Scouts of America v. Dale that voluntary organizations can dictate the terms of their own membership.
But beyond that, the issues grow murky. Courts across the nation still are grappling with controversies around transgender sports participation, Medicaid coverage and bathrooms.
With the land’s highest court declining to settle the national quarrel on bathrooms, a Wyoming law like the What Is A Woman Act, or a local school-board policy, could tip the Cowboy State into the rumble.
Clair McFarland can be reached at clair@cowboystatedaily.com.
