I wrote last August about the wild Fourth Circuit ruling in Williams v. Kincaid that eviscerated the provision of the Americans with Disabilities Act that explicitly excluded from its definition of disability “gender identity disorders not resulting from physical impairments.”
I’m sorry to see that the Supreme Court last Friday denied the certiorari petition filed by the Fairfax county sheriff. Justice Alito, joined by Justice Thomas, dissented from the denial. Here are excerpts from Alito’s dissent:
This case presents a question of great national importance that calls out for prompt review. The Fourth Circuit has effectively invalidated a major provision of the Americans with Disabilities Act, and that decision is certain to have far-reaching and highly controversial effects….
This decision will raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy (both the performance of surgery and the administration of hormones) by physicians and at hospitals that object to such treatment on religious or moral grounds….
[I]f the Fourth Circuit’s decision is wrong—and there is certainly a reasonable argument to that effect [wry understatement]—then the 32 million residents of the Fourth Circuit should not have to bear the consequences while other courts wrestle with the same legal issue.
There are times when it is prudent for this Court to deny review of a questionable court of appeals decision because we may learn from the way in which other courts of appeals and district courts handle the same question, but in this case that prudential consideration is not sufficient to justify the denial of prompt review.
Relying in part on Judge Quattlebaum’s excellent dissent, Alito discusses “several aspects of the Fourth Circuit’s reasoning [that] are troubling.”
In one case after another, the Fourth Circuit has proven itself to be a rogue court. Unfortunately, the Supreme Court has shown little inclination to rein it in, and it has been particularly skittish about reviewing unsound rulings on transgender issues. Perhaps most notably, it failed to grant review of a certiorari petition challenging the Fourth Circuit’s bathroom mess in Grimm v. Gloucester County School Board.