The Supreme Court on Wednesday decided 5-3 to stay a recent decision from a federal appeals court, G.G. v. Gloucester County School Board, temporarily suspending enforcement of that court’s finding that a trans boy was illegally prevented from using the men’s restroom at his Virginia high school. (Too many negatives? The school has been granted the ability, temporarily, to ban the boy from men’s restrooms in the school.)
Gavin Grimm, a 15-year-old trans boy at Gloucester County High School in Gloucester Courthouse, Virginia, was prevented by his school from using the men’s room (though they had acquiesced for a short period of time in 2014 before parents of other children began to complain). Now, the school provides restrooms for both genders, as well as single-stall unisex restrooms. Grimm argues that being resigned to the unisex restrooms is a form of gender discrimination.
Grimm argued that Title IX of the Education Amendments of 1972, a landmark sex-based discrimination prevention law in federally-funded schools, also protects gender-based discrimination. While the text of the law simply says sex-based discrimination, the U.S. Department of Education has in recent years issued guidelines that interpret the law to protect transgender students, directing schools to allow transgender students to use the restrooms that align with their gender identity.
A three-judge panel in the 4th Circuit Court of Appeals ruled in favor of Grimm, sending the case back to a lower court. The Appeals Court used Auer deference, a principle formally established in 1997’s Auer v. Robbins (though deference of the sort has been happening for decades longer), in which the Supreme Court decided that federal courts should rely on federal agencies’ interpretations of their own rules. In this case, as noted above, the U.S. Department of Education defines “on the basis of sex” in Title IX to include gender identity. The U.S. Department of Justice has also joined the Education Department in their interpretation. Chief Justice Roberts, as well as Justices Alito and Thomas, are staunched opponents of Auer deference and have been itching for a case to overturn it.
The panel’s vote was 2-1 and the dissenting vote came from Judge Paul V. Niemeyer, a reliably conservative jurist. After the decision, however, when the court debated whether (and eventually declined) to hear the case with all sitting judges, instead of three, Niemeyer argued the Supreme Court was the appropriate body to hear the case, not the entire court en banc.
In early June, the School Board announced they would appeal the decision, and a month later they did, asking the Supreme Court to decide whether the lower court’s decision violated the principles of federalism and separation of powers, as well as to navigate the murky waters that define the debate between between protecting liberty and privacy. The school board warned of “severe disruption”: that many parents would withdraw their children from the schools because of the decision.
Meanwhile, the case was sent back down to the lower court, which instructed the school board to allow Grimm to use the men’s restroom. The appeals court denied the school board’s request (filed at that court) to block the lower ruling while the Supreme Court was deciding whether to take up the case. After the appeals court denied the stay request, the school board took that request to the Supreme Court in a filing in July.
Grimm responded to the filing at the Supreme Court with a filing of his own, arguing that the school board failed to show any “irreversible harm” from allowing him to use the men’s restrooms. The school board requested a stay, and since stays are issued to prevent irreparable harm and, according to Grimm, there would be no such harm by allowing him to use the restrooms, the stay request ought to be denied. Meanwhile, Grimm suffers public humiliation if he uses the single-stall restroom, so he avoids using the restroom at all, causing UTIs. The school board responded that allowing Grimm to use the men’s restroom would deprive men of their right to privacy.
On August 3, the Supreme Court issued a stay on the Fourth Circuit’s ruling as the school board vies to have their case formally heard by the Supreme Court. The Court’s conservative wing, Chief Justice Roberts and Justices Alito and Thomas, plus right-leaning moderate Justice Kennedy and left-leaning Justice Breyer found themselves in the majority. Justices Ginsburg, Sotomayor and Kagan would have denied the request.
Justice Breyer filed a concurring opinion — just one paragraph in length — in which he explained he granted the stay out of courtesy, because it would preserve the status quo. Breyer’s concurrence perhaps reflects his intent to vote in favor of Grimm later on if the Court hears the case. Already, it seems the case could be a 4-4 split.
All around the country, particularly in the south, cases involving states challenging the Obama administration’s directive are winding their way up through the courts. It’s only a matter of time before the Court is hit with a wave of appeals that will demand their response by granting cert.