A Virginia school district has asked U.S. Chief Justice John G. Roberts Jr. to block lower-court rulings requiring the district to permit a transgender student to use the restroom of his gender identity.
The emergency application filed July 13 by the Gloucester County School Board means the recent national debate over restroom access for transgender students has reached the nation’s highest court.
The school district asked Roberts to block the mandate of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va. The chief justice is the circuit justice overseeing the 4th Circuit, which ruled in favor of a 17-year-old student, Gavin Grimm, who was born female but identifies as male.
The school district also asked Roberts to consider blocking an injunction issued by a federal trial court that requires the district to allow Grimm to use the restroom of his choice. The district says it will file its full appeal—a petition for writ of certiorari—by Aug. 29.
“In the interim, however, it urgently needs a stay of the underlying action—including the preliminary injunction—in order to avoid irreparable harm to the board, to the school system, and to the legitimate privacy expectations of the district’s schoolchildren and parents alike,” the Gloucester County district’s application says.
In its court papers, the district stresses the argument that the Obama administration’s guidance—which calls on schools to allow transgender students to use the restroom of their choice—exceeds its authority and that the 4th Circuit court showed too much deference to the administration’s views.
“This case presents one of the most extreme examples of judicial deference to an administrative agency this court will ever see,” the school district says.
Even before the federal Departments of Education and Justice issued a May 13 “Dear Colleague” letter broadly outlining its their views on the transgender issue, the 4th Circuit had relied on other expressions of the administration’s view that under longstanding Education Department regulations on Title IX of the Education Amendments of 1972, school district policies that restrict transgender students to using the restrooms of their biological gender are not in compliance.
The Gloucester County district said the case would present a good vehicle for the high court to reconsider one of its precedents about administrative deference upon which the 4th Circuit relied, Auer v. Robbins. (I explored that issue more closely in this story.)
Apart from the Gloucester County case, 24 states are now challenging the Obama administration’s guidance on transgender restroom policies in two separate lawsuits, says my Education Week colleague Evie Blad, who has been covering the issue closely in her Rules for Engagement blog.
On Thursday, Chief Justice Roberts called for a response to the school district’s application from lawyers for Grimm. It is due by July 27.
Roberts could then decide on his own whether to grant the school district’s request for emergency action, or he could refer it to the full court. (That option is less likely now during the court’s summer recess, when the justices are scattered about.)
The case is Gloucester County School Board v. G.G. (No. 16A52)
A version of this news article first appeared in The School Law Blog.