23 States Urge Supreme Court To Uphold Sex-Specific Bathroom Policies

Indiana Attorney General Todd Rokita and 22 other states filed an amicus brief on Friday, asking the U.S. Supreme Court to allow a South Carolina school to maintain its policy of separate bathrooms and locker rooms for boys and girls.

The amicus brief notes that the Fourth Circuit has been “mandating policies that deprive schoolchildren of privacy during vulnerable moments. In Grimm v. Gloucester County School Board, a sharply divided panel of the Fourth Circuit required a school to let a girl access a multi-occupancy restroom reserved for the opposite sex because the student, though female, identified as a boy. And the Fourth Circuit has since expanded Grimm, wielding its logic to invalidate regulations on gender-transition procedures and providing for sex-separated sports teams.”

End of Summer Sale – Get 40% off New DailyWire+ Annual Memberships

“From the start, Grimm was wrongly decided. As Judge Niemeyer explained, the Grimm majority disregarded well ‘established principles’ and Title IX’s text to ‘advance[] policy preferences,’” the brief notes. “In United States v. Skrmetti, this Court rejected Grimm’s view that any rule referencing sex-related concepts contains a sex-based classification, even if the rule applies equally to all children. In Department of Education v. Louisiana, this Court let stand injunctions that blocked the federal government from forcing States to adopt the very type of bathroom-access policies that Grimm requires schools to adopt. And, of course, this Court recently granted certiorari to review another Fourth Circuit decision adopting Grimm’s logic. (Jackson v. W. Va. State Bd. of Education.)”

“No child should fear for their safety or privacy when using a bathroom, changing in the locker room, or showering after sports,” Rokita stated. “Forcing schools to mix boys and girls in these types of spaces shouldn’t be allowed or tolerated, and we’re going to continue fighting to stop it.”

“Under the Equal Protection Clause, this should be a simple case,” the amicus brief contends. “The Fourth Circuit agrees that schools can maintain separate bathrooms for boys and girls. It thus follows that schools can enforce policies providing for single-sex bathrooms against students who would prefer to use a bathroom designated for the opposite sex.”

“The Fourth Circuit claims that enforcing such policies against all students offends heightened scrutiny. As this Court’s decision in Skrmetti explains, however, a policy that applies to boys and girls alike does not classify on sex or transgender identity. South Carolina did not draw any impermissible lines when it decided that no one should be able to use a bathroom designated for the opposite sex,” the amicus brief concludes.