In a 5-3 decision, justices placed on hold a decision from the U.S. Fourth Circuit Court of Appeals allowing Gavin Grimm to use the men’s restroom at Gloucester County Public Schools, which had sought to bar him from the facility. The stay will remain in place while the Supreme Court considers whether to review the Fourth Circuit’s decision.
Gloucester County Public Schools made the stay request to U.S. Chief Justice John Roberts, who has jurisdiction over the Fourth Circuit. The single-page order from the Supreme Court indicates Roberts referred the matter to the entire court, which ruled in favor of the district.
The order includes note from U.S. Associate Justice Stephen Breyer, who says he joins four justices in granting the stay to “preserve the status quo” in the case.
“In light of the facts that four justices have voted to grant the application referred to the Court by the chief justice, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the court of appeals made its decision) until the court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy,” Breyer writes.
The more liberal justices on the Supreme Court — U.S. Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — would have denied the application, the order says. Given Breyer’s note, the justices who agreed to grant the stay are himself, Roberts as well as U.S. Associate Justice Samuel Alito, Clarence Thomas and Anthony Kennedy.
The Fourth Circuit had ruled in favor of Grimm on the basis that the prohibition on sex discrimination under Title IX of the Education Amendments of 1972 applies to transgender students and requires them to use the restroom consistent with their gender identity. In May, the Fourth Circuit Court of Appeals rejected a request by the Gloucester County School Board to rehear Grimm’s lawsuit “en banc” before the full court.
Matt McTighe, executive director of Freedom for All Americans, said in a statement the order means “Gavin will return to his school this fall and will not be treated fairly or equally.”
“Every single student deserves to go to a school where they feel safe, respected and nurtured,” McTighe said. “The Fourth Circuit’s previous ruling was based in growing legal precedent, and we hope that ongoing appeals will recognize the original finding. School administrators have a responsibility to advance policies that enrich all of their students – including their transgender students. It’s disappointing that a handful of officials in Gloucester County are going out of their way to discriminate against Gavin.”
In an organizational statement, the Gloucester County School Board said it “welcomes” the order from the Supreme Court as the new school year approaches.
“The board continues to believe that its resolution of this complex matter fully considered the interests of all students and parents in the Gloucester County school system,” the statements says.
The order also defies guidance issued by the Obama administration informing schools that discrimination against transgender students, including barring them from the restroom consistent with their gender identity, could jeopardize their federal funds under Title IX.
According to Politico, the Supreme Court signals justices are “highly likely to grapple with the issue of transgender bathrooms in its coming term.”
Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision is “disappointing,” but just a “temporary delay” that doesn’t indicate the mindset of the Supreme Court on the issue.
“Especially in light of Justice Breyer’s statement that his vote for a stay was a mere ‘courtesy’ to preserve the status quo while the court considers whether to review the decision, this should not be taken as any sign of where a majority of the court is leaning on the substantive question of whether Title IX protects transgender students,” Minter said. “Across the country, courts and policymakers are recognizing that discrimination against transgender people is sex discrimination. We are confident that if and when this issue reaches the Supreme Court, the court will affirm that recognition.”