The Supreme Court voted 5-3 late today to stay a closely-watched, lower District Court ruling that would have allowed a transgender student access to the boys bathroom in Gloucester County Virginia. The Court’s decision today will certainly factor into U.S. District Judge Thomas Schroeder’s pending decision after Monday’s hearing in federal court on a request from HB2 challengers to block North Carolina’s bathroom law until until they can make their case at trial on November 14th.
Gavin Grimm, who was born female but identifies as male, was allowed to use the boys restroom at his high school for several weeks in 2014. But after some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom. Grimm argues the policy violates Title IX, a federal law that bars sex discrimination in schools. The American Civil Liberties Union is representing Grimm in this case and they have carried their arguments into North Carolina to file suit against HB2.
As the school year approaches, the Virginia school board filed an emergency application to the Supreme Court and countered that allowing Grimm to use the boys restroom raises privacy concerns and may cause some parents to pull their children out of school. The Gloucester County School Board said, “For decades, our nation’s schools have structured their facilities and programs around the sensible idea that in certain intimate settings men and women may be separated ‘to afford members of each sex privacy from the other sex.’”
If the justices agree to hear Grimm’s case in the upcoming year, today’s order will remain on hold, not granting access to the boy’s bathroom until the court makes a final ruling, but if the justices deny the school board’s petition for review, the lower court order requiring the board to let Grimm use the boy’s bathroom will be reinstated. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. Justice Stephen Breyer said he agreed to put the case on hold to “preserve the status quo” until the court decides whether to weigh in.
The appeals court sided with Grimm in April, saying the federal judge who previously dismissed Grimm’s Title IX discrimination claim ignored a U.S. Department of Education rule that a transgender student in public schools must be allowed to use restrooms that correspond with their gender identity. The appeals court reinstated Grimm’s Title IX claim and sent it back to the district court for further consideration. But the high court’s decision Wednesday puts Grimm’s case on hold until the justices decide whether to intervene.
The appeal in the Gloucester case raises an issue that has long interested the conservative justices at the Supreme Court. Congress did not pass a new law to clarify the rights of transgender students nor did Department of Education issue a new regulation. Instead, DOJ lawyers and DOE officials sent a “guidance” to school officials advising them that in the department’s interpretation, Title IX, adopted in 1972, now means that excluding transgender students from facilities that fit their gender identity amounts to illegal sex discrimination. The justices must decide if a bureaucrat can interrupt, expand and issue guidance on a federal law that withholds funding for failure to comply.
Tami Fitzgerald of NC Values Coalition said late today, “It’s just common sense that a student who has female anatomy does not belong in the boys’ bathroom. It violates the constitutionally protected right of privacy of all the other students. We believe this ruling will have implications for North Carolina’s HB2, because this means that the Virginia case can no longer be cited as authority for the DOJ’s radical new interpretation of Title IX. Nor can the Charlotte-Mecklenburg School System and the UNC System continue their lawless refusal to enforce state law, citing the stayed Virginia decision. Parents in Charlotte have a reason now to demand that CMS back down on implementing its new transgender policy that would allow boys and girls to share bathrooms, showers, locker rooms, and even overnight sleeping facilities in public schools.”