The Supreme Court’s Term beginning on the first Monday in October and extending through the end of June may become a “blockbuster” term for LGBT legal issues. The Court has already agreed to review the Colorado Court of Appeals’ decision that a baker’s refusal to make a wedding cake for a gay couple is not protected from prosecution under the state’s public accommodations law by the 1st Amendment’s protection for free speech and religious freedom, and in July the Court was asked to review a similar ruling from the Washington State Supreme Court concerning a florist who refused to provide floral designs for a same-sex wedding. On August 25, the Kenosha (Wisconsin) School District asked the Court to review a recent ruling by the Chicago-based 7th Circuit Court of Appeals that the district must allow transgender high school senior Ash Whitaker to use the boy’s restroom facilities, and the Court will also be asked to consider whether a Georgia hospital violated the federal ban on employment discrimination because of sex when it discharged a lesbian security guard. Since the Court is likely to grant at least one or two of these petitions, this could be a term in which Court decides an unprecedented number of LGBTQ-related cases.
The Court’s potential agreement to decide the Kenosha case would not be surprising, since just a year ago it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals that another transgender high school student, Gavin Grimm, could pursue his claim that the Gloucester County School District violated his rights under Title IX of the federal Education Amendments Act of 1972, which forbids sex discrimination by schools that receive federal money, when it prohibited him from using boys’ restrooms at the county high school. The 4th Circuit’s ruling reversed a dismissal of Grimm’s claim by the federal district court, finding that the court should have deferred to an interpretation of the relevant Education Department regulation embraced by the Obama Administration. The case was set for oral argument late in the Term, but within weeks of Donald Trump’s inauguration and installation of Betsy DeVos as Secretary of Education and Jeff Sessions as Attorney General, their departments had released a joint “Dear Colleague” letter to public schools “withdrawing” the Obama Administration’s interpretation, instead substituting a statement that the issue of bathroom access should be left to state and local school authorities. After they advised the Court of this action, it vacated the 4th Circuit’s decision for reconsideration, and the 4th Circuit has since sent the case back to the district court to determine whether Grimm’s June graduation has rendered the case moot and subject to dismissal. Grimm, represented by the ACLU, argues that as an alumnus, he has a continuing interest in restroom access at the high school, but the school district argues that this is too speculative to give him continuing standing to maintain his lawsuit. The district judge, who originally dismissed the case, will make the initial ruling on mootness.