Supreme Court Grants Stay to Va. School Board in Transgender Bathroom Case

By Mark Walsh — August 03, 2016 3 min read
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The U.S. Supreme Court on Wednesday granted a stay sought by a Virginia school district so that the district will not have to allow a transgender student to use the restroom of his choice when school opens in September.

The court voted 5-3 to grant the stay sought by the Gloucester County school district after Chief Justice John G. Roberts Jr. referred the stay application he received last month to the full court.

Roberts was joined by Justices Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr. in granting the stay. Breyer said in a short concurring statement that he was voting for the stay “as a courtesy.” Without Breyer’s vote, a 4-4 split on the question would have meant no stay. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan said they would deny the stay application.

The school district asked Roberts (or the full court) to block the mandate of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., which in April ruled in favor of a 17-year-old student, Gavin Grimm, who was born female but identifies as male. (Grimm, who will be a high school senior this fall, is referred to as G.G. in court documents, but has been widely identified by his full name.)

The district also asked for a stay of a June 23 order issued by a federal trial court—issued after the 4th Circuit’s decision—that requires the district to allow Grimm to use the restroom of his choice beginning with the new school year.

The Supreme Court’s Aug. 3 order grants both of those requests. As is typical in such matters, the high court’s order said the stay will be in force pending the court’s disposition of the school district’s regular appeal of the 4th Circuit decision. That appeal is scheduled to be filed by late August, and the high court likely wouldn’t act on it for at least two months after that.

In its stay application, the Gloucester County said it would suffer “irreparable harm” if it was required to allow Grimm to use the bathroom of his choice.

Grimm’s lawyers countered in a response filed with Roberts that the lower court order applies only to Grimm and his desire to use the restroom of his choice at Gloucester High School, and that Grimm is not seeking to use the boys’ locker room or showers.

“The narrow, limited preliminary injunction will not inflict any of the purported irreparable injuries the [school district] claims it will suffer,” Grimm’s lawyers said in the filing, which references some of the district’s arguments. “It does not force the [district] to develop ‘new policies’ for students in ‘kindergarten through 12th grade;' it does not apply to locker rooms, showers, or other situations in which students may be ‘in a state of full or complete undress,’ and it certainly does not ‘extend to every school district in the Fourth Circuit’ or ‘the entire nation.’”

In a reply to that, the school district said that “to anyone familiar with public schools in the real world, the irreparable harms flowing from the Fourth Circuit’s decision are obvious,” including that the lower-court decision “deprives the people of Gloucester County of their ability, acting through elected school board representatives, to establish a policy on one of the most sensitive matters imaginable—who may access single-sex student bathrooms.”

Justice Breyer, in his concurrence, said he was voting to grant the stay “in light of the facts that four justices have voted to grant the application ... , 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.”

When the school district’s regular appeal arrives at the Supreme Court, the votes of only four justices would be needed to grant review.

Education Week‘s Evie Blad also reports on the high court’s stay at her Rules for Engagement blog.

A version of this news article first appeared in The School Law Blog.