The US Supreme Court Has Sold Out Women and Girls (Again)
It also wimped out by refusing to deal with Bostock
January 18, 2024
On Tuesday, the US Supreme Court decided not to take up the matter of Martinsville v. A.C., a simple and straightforward case about whether schools that receive federal funding may, consistent with federal statutory and constitutional law, maintain single-sex bathrooms. The US Court of Appeals for the 7th Circuit had decided that maintaining single-sex bathrooms in schools is illegal and unconstitutional. The US chapter of Women’s Declaration International joined several other women’s groups in an amicus brief urging the Supreme Court to review the 7th Circuit’s decision. Plenty of people thought it would do so, in part because the school board was represented by Paul Clement, who previously served as a US Solicitor General and argued matters before the Court on behalf of the US government.
But no. The Supreme Court has let the 7th Circuit’s decision stand. So now, in Illinois, Indiana, and Wisconsin, schools are not allowed to maintain single-sex bathrooms.
After several years of litigation, the US Court of Appeals for the 4th Circuit had come to a similar decision in a case called Grimm v. Gloucester County in 2021 and the Supreme Court decided not to take that case either, so the 4th Circuit’s decision stands, and schools in Virginia, Maryland, North Carolina, South Carolina, and West Virginia aren’t allowed to maintain single-sex bathrooms either.
These circuit decisions, of course, fly in the face of the material reality of sex and of the rights of girls and young women (as well as boys and young men) to have privacy from members of the opposite sex when using the bathroom.
Thankfully, the US Court of Appeals for the 11th Circuit came to the opposite conclusion in December 2022 in a case called Adams v. St. John’s County, so in the states of Florida, Georgia, and Alabama, schools are allowed to maintain single-sex bathrooms.
This presents a classic example of a “circuit split,” where two or more circuits in the US Court of Appeals reach different decisions on the same legal issue. The disagreement means federal law is applied differently in different parts of the country, so similarly situated litigants receive different treatment. The Supreme Court is never required to review a case, nor is it required to provide any reasoning for its decisions to review or not to review one. But the existence of a circuit split is one factor the Court typically considers in making such decisions. In this case, the Court simply wimped out, and women and girls will pay the price.
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