Last Wednesday a federal circuit appeals court ruled that a Virginia school board’s transgender bathroom use rule was unconstitutional and discriminated against a self-identifying transgender male student who was barred from using the boy’s bathroom. According to the Associated Press, the student was required to use restrooms that corresponded with his female biological sex – or private bathrooms.

The court reasoned that the student “was treated worse than students with whom he was similarly situated because he alone could not use the restroom corresponding with his gender…. Unlike the other boys, he had to use either the girl’s restroom or a single-stall option.” It was an odd formulation, to be sure, but one that does seem to be catching on in some gay rights cases.


At bottom, the court accepted the student’s self-styled gender identification as definitive. Indeed, the school had argued that our laws protect against discrimination based on sex, not gender, and pointed out that the student had not undergone sex-reassignment surgery and had female genitalia, which should govern.

This is just the kind of case that would seem to cry out for U.S. Supreme Court review to allow for the most thorough consideration and the most authoritative outcome our system can provide. Unfortunately, this does not seem to be in the cards.

Similar decisions have come from other federal circuit courts which govern the states within the respective designated circuits. However, typically the Supreme Court hears cases when there is a difference of opinion amongst the various circuits in order to establish a uniform rule for the entire country.

So while the court’s decision is counter-intuitive and contrary to what most of us were brought up to believe, it will be the local courts that will ultimately decide. (Nor is Supreme Court finality a guarantee that common sense will triumph.) In a profound sense, mere mortals who have no control over reality may yet be empowered to impose a fictive version of one.


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