The debate over which restroom transgender students may use at school is now playing out in the nation’s courtrooms, presenting a lot of uncertainty for school leaders just as millions of students return to classrooms for the new academic year.
Earlier this week, a federal district judge based in Wichita Falls, Texas,that temporarily halts the Obama administration’s enforcement of guidelines meant to expand transgender students’ access to restroom and locker room facilities in schools. That ruling—which came as part of a 13-state legal challenge led by the state of Texas—comes on the heels of the U.S. Supreme Court intervening in a different transgender-rights case that signals that it may be ready to take up the merits of the issue.
The high court surprised many observers by stepping into a Virginia case and blocking an injunction won by a 17-year-old transgender student seeking to use the boys’ restroom at his high school.
The justices on Aug. 3 voted 5-3 to stay lower-court orders that would have allowed Gavin Grimm, who was born female but now identifies as a male, to use the boys’ restroom at his high school in Gloucester County, Va. The high court will decide later whether to take up the merits of the case for full argument and decision.
The school district won the stay because Justice Stephen G. Breyer joined with the court’s four-member conservative bloc as “a courtesy,” as he put it in a concurrence, to preserve the status quo and because the court was on its summer recess. His vote may be as much about future death-penalty cases as it is about the hot-button issue of transgender rights, legal experts say.
Both the case brought by the 13 states and the case involving the Gloucester County school district in Virginia are among a number of legal challenges related to the rights of transgender students in public schools. The Obama administration’s stance was outlined most explicitly in its May “Dear Colleague” letter to schools asserting that educators should allow transgender students to choose restrooms and locker rooms “consistent with their gender identity.”
“I’m sure the Supreme Court stay has increased confusion for schools about what the law requires,” said Joshua A. Block, an American Civil Liberties Union lawyer representing Gavin. The stay, he noted, “doesn’t have an actual effect on any other case but Gavin’s, but everyone is trying to read the tea leaves.”
Multiple Legal Challenges
The Obama administration’s guidance is based on a 1975 regulation interpreting Title IX of the Education Amendments of 1972, which bars discrimination based on gender in federally funded schools. That regulation clarifies that schools can maintain separate restroom facilities for boys and girls.
When, more recently, some school districts began citing the regulation to require transgender students to use the restrooms of the sex of their birth, the U.S. Department of Education sought to clarify that, under its view, the opposite was required: Schools must allow transgender students to use facilities consistent with their gender identity.
The new guidance is being challenged in four other lawsuits around the country, including a case filed by a second group of states in a federal court in Nebraska.
In Gavin’s case, Gloucester County school district officials asked Chief Justice John G. Roberts Jr. to block two lower court decisions. In April, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., held that the Education Department’s legal interpretation of its own 1975 regulation was owed deference and that Gavin should be allowed to use the boys’ bathroom. A federal district judge soon issued an order requiring as much. (Gavin hasn’t pressed to use the boys’ locker room at his high school.)
Roberts referred the district’s request in Gloucester County School Board v. G.G. (No. 16A52) to stay those decisions to the full court, currently one member short because of the vacancy caused by Justice Antonin Scalia’s death. Roberts, along with Breyer and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr., voted to grant the stay.
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan voted against granting the stay.
Michael C. Dorf, a law professor at Cornell University, said that Breyer may have drawn attention to his “courtesy” vote as a way of pushing his colleagues to return more reliably to the practice of such courtesy votes for stays. Such emergency actions require five votes, while granting a review to hear the merits of any case only requires four.
That has led to a situation in which four justices vote to hear the appeal on the merits of, say, a death-row prisoner, but that prisoner lacks a vote from a fifth justice to stay his execution before that appeal could be heard.
Such a “grisly scenario” has unfolded several times in recent years, Dorf noted. In a 2008 case involving a Mexican national who was scheduled to be executed in Texas for the gang rape and murder of two teenage girls in Houston, four justices wanted to delay the execution at least long enough to hear the views of the U.S. solicitor general about the international treaty implications of the death sentence.
Breyer said in a dissent at the time that it was “particularly disappointing” that no other justice would provide the fifth vote to stay the execution. Breyer cited that dissent in Medillín v. Texas in his concurrence in the transgender case.
But Breyer’s stance in the transgender case troubled many legal observers, including Dorf, who called it “ill-advised.”
In the Gloucester County case, Dorf said, “there is no risk that disturbing the status quo will moot the case.” In other words, one of the main standards for granting the extraordinary relief of staying a lower-court injunction was not met because the district could still pursue the merits of its desire to require students to use the restrooms corresponding to the sex they were assigned at birth.
Dorf, a former law clerk to Justice Kennedy, says it is “laughable” to suggest that the district would be irreparably harmed by “accommodating one trans student’s desire to use the restroom that matches his gender identity."Both Dorf and Block, the ACLU lawyer representing Gavin Grimm, argued that the stay harms the transgender youth, who has mostly refused to use the separate, single-occupancy restroom that school authorities have asked him to use.
“The real effect is on this teenager,” said Black. “As a result of the stay, he’s going to have to go back to school under humiliating circumstances.”
The Gloucester County district’s main lawyers in the case, at a Richmond, Va., firm, did not respond to a request for comment. A lawyer with a Washington firm hired to help with the district’s Supreme Court appeal declined to comment.
The Gloucester County district must file its appeal on the merits of the 4th Circuit’s ruling by Aug. 29, after Chief Justice Roberts last week turned down the district’s request for a 30-day extension to file that appeal.
Derek W. Black, a law professor at the University of South Carolina who specializes in education law, said he was surprised by the Supreme Court’s stay in the Gloucester County case, given how much other litigation is percolating about transgender students in schools.
“Maybe with this stay, the court is just pressing the pause button for schools on this issue,” Black said.
A version of this article appeared in the August 24, 2016 edition of Education Week as High Court Steps Into Groundbreaking Transgender Case