WASHINGTON — The Supreme Court put an order allowing a transgender student to use school restrooms in accordance with his gender identity on hold while the high court decides whether it will take the case.
The Supreme Court's action likely means that the student, Gavin Grimm, will not be allowed to use the male restroom when he returns to his Virginia school in the fall.
The stay of the injunction in the student's challenge to the Gloucester County School Board's policy was granted on a 5-3 vote, with Justice Stephen Breyer joining his more conservative colleagues in granting the stay.
The order is not a ruling on the eventual outcome of the case itself, nor is it a definitive statement on whether the Supreme Court will even hear the school board's appeal.
The stay will, however, remain in effect at least until the court decides whether it will hear the appeal — a decision that is not expected to be made any sooner than the beginning of the court's new term in October.
The 4th Circuit Court of Appeals ruled earlier this year that the Obama administration's interpretation of regulations implementing Title IX of the Education Amendments of 1972 as providing protections for transgender students is a permissible interpretation. After that ruling, the trial court judge in the case issued an injunction prohibiting the school board from implementing its policy limiting restroom use to students' "biological sex."
The board had passed the policy in 2014, essentially targeting Grimm, who is the only out transgender student in the district.
Breyer wrote that he joined in granting the stay, as well as recalling the mandate of the appeals court decision, "as a courtesy" because four other justices — Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito — were voting to grant the stay and "granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision)." Breyer cited to his dissent in Medellín v. Texas — a death penalty case in which he was unable to secure a so-called "courtesy fifth" vote for a stay of execution — as further explanation of why he granted the stay in Wednesday's decision.
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan would have denied the stay request.
The court notes that the stay will remain in effect until it decides whether to grant the school board's forthcoming certiorari petition asking the Supreme Court to review the lower court's decision. If the court agrees to hear the case, the stay will remain in effect until there is a ruling in the case. If the court decides not to hear the case, the stay will end at that time.
The school board issued a brief statement, noting that it "welcomes the Supreme Court’s decision 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 ACLU, which is representing Grimm, expressed disappointment at the Supreme Court's action.
"We are disappointed that the court has issued a stay and that Gavin will have to begin another school year isolated from his peers and stigmatized by the Gloucester County school board just because he’s a boy who is transgender," ACLU senior staff attorney Joshua Block said in a statement. "We remain hopeful that Gavin will ultimately prevail."