South Carolina filed an emergency application to the Supreme Court this week requesting that the state be allowed to enforce its law requiring students to use bathrooms corresponding to his or her biological sex.
The emergency request came on Thursday after the U.S. Court of Appeals for the 4th Circuit blocked the state from enforcing a budget proviso, which bans students from restrooms other than the ones that align with their biological sex, against a transgender minor student, identified as “John Doe,” earlier this month. South Carolina Solicitor General Thomas Hydrick argued the high court should stay the injunction and said the appeals court relied on a “discredited” appeals court opinion that goes against the Supreme Court’s recent rulings.
“In recent years, a growing judicial consensus has recognized that this practice of ‘separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX,’” Hydrick wrote.
“The Fourth Circuit disregarded that growing consensus and enjoined a South Carolina budget proviso prohibiting the use of opposite-sex multi-occupancy restrooms in public schools as applied to the minor Respondent pending appeal. In doing so, it reverted to its discredited outlier opinion in Grimm v. Gloucester County School Board,” he added.
In the 2020 opinion in Grimm v. Gloucester County School Board, the 4th Circuit ruled that a policy that restricted students to bathrooms corresponding to their biological sex violates the equal protection clause and Title IX, also finding that transgender people constitute a class for equal protection claims. The Supreme Court declined to take up the case in 2021.
Hydrick argued the Supreme Court’s June decision in United States v. Skrmetti, which upheld a Tennessee law banning transgender procedures for minors, declined to find that it created a class for people who identify as transgender, and that the higher court’s decision severely undercut the appeals court’s ruling in Grimm.
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The South Carolina solicitor general also pointed to the high court’s decision to hear B.P.J. v. West Virginia State Board of Education in the upcoming term. The case will deal with whether a state law limiting female sports to biological women violates Title IX or the equal protection clause. The high court will also hear a separate case on the legality of state laws limiting men’s and women’s sports by biological sex.
“An emergency stay of the Fourth Circuit’s injunction is warranted not only because Grimm was wrongly decided and should (and may soon) be overturned, but because in the absence of this Court’s immediate intervention, the State, the school district, and its students are suffering actual, ongoing, material harms—all from a mandatory injunction that disrupts the status quo in a preliminary posture in a case where the Plaintiffs are unlikely ultimately to prevail,” Hydrick wrote.