Supreme Court grants emergency order to block transgender student from using boy’s restroom

By David G. Savage

Tribune Washington Bureau

WASHINGTON — The Supreme Court intervened for the first time Wednesday in the controversy over transgender rights and blocked a lower court ruling that would have allowed a transgender boy to use the high school restroom that fits his “gender identity.”

In an unusual 5-3 order, the justices granted an emergency appeal from a Virginia school board that said it is fighting to “protect the basic expectations of bodily privacy of Gloucester County students.”

Justice Stephen G. Breyer said he joined the court’s four conservatives to put the issue on hold until the justices can review the matter during the fall. “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 on recess and that granting the stay will preserve the status quo,” he wrote, “I voted to grant the application as a courtesy.”

The court’s action, while not a ruling, signals at least four justices are skeptical of the Obama administration’s civil rights policy.

Last year, an Education Department lawyer advised school districts that Title IX, the law which forbids sex discrimination in education, protects the rights of transgender students to use restrooms and changing facilities that are “consistent with their gender identity.”

In April, the 4th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld that policy and ruled for Gavin Grimm, the 17-year old transgender boy who sued over the issue. The Gloucester School Board had adopted a rule that barred him from using the boy’s restroom. In its appeal to the Supreme Court, the school board said it had installed several uni-sex facilities in the high school in response to the dispute.

But the appeals court issued an order telling Gloucester school officials they must abide by the ruling now and allow Grimm to use the boy’s restrooms.

In Wednesday’s order, the Supreme Court said it had granted the school board’s request to “stay the mandate” of the 4th Circuit, “pending the timely filing and disposition of a petition for a writ of certiorari.”

It takes only four votes to grant a petition to review a lower court ruling, but five votes to rule on the issue. If the eight-member court were to split evenly, the decision would affirm the lower court’s ruling.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan said they would have turned down the emergency appeal in the Gloucester case and allowed the lower court’s ruling to take effect.

The request for an emergency stay was filed with Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. joined in granting the request.

Lawyers for the ACLU had strongly urged the court to turn down the request on the grounds the school board would suffer “no irreparable harm” if the boy were permitted to use the boy’s restroom.

Wednesday’s order comes just as a federal judge in North Carolina is weighing arguments on whether to put on hold the state’s controversial measure known as H.B. 2. It says public restrooms and changing facilities, including in schools and colleges, must be segregated by sex, as defined by “the physical condition of being male or female which is stated on a person’s birth certificate.”

Lawyers for the ACLU and Lambda Legal urged U.S. District Judge Thomas Schoeder on Monday to block the state from enforcing the measure while both sides prepare for a trial on the issue in November. The judge said he would rule on the request shortly. But the Supreme Court’s order may influence the judge’s decision.

The appeal in the Gloucester case raised a procedural issue that no doubt drew the interest of the conservative justices. Congress did not pass a new law to clarify the rights of transgender students, and the U.S. Department of Education did not issue a new regulation. Instead, its lawyers sent a “guidance” to school officials advising them that in the department’s view, Title IX, adopted in 1972, means that excluding transgender students from facilities that fit their gender identity amounts to illegal sex discrimination.