The Supreme Court intervened for the first time Wednesday in the controversy over transgender rights and blocked a lower court ruling that would have allowed a transgender boy to use the high school restroom that fits his "gender identity."
In an unusual 5-3 order, the justices granted an emergency appeal from a Virginia school board that said it is fighting to "protect the basic expectations of bodily privacy of Gloucester County students."
The school was seeking to be exempted from the Obama administration's position that schools nationwide are required to allow transgender students to use the bathroom they prefer.
Justice Stephen G. Breyer signaled he did not support the school's emergency appeal, but said he joined the court's four conservatives as a "courtesy" to put the issue on hold until the justices can review the matter when they return in the fall.
"In light of the facts that four justices have voted to grant the application referred to the court by the Chief Justice, that we are currently on recess and that granting the stay will preserve the status quo," he wrote, "I vote to grant the application as a courtesy."
The issue began last year when a U.S. Department of Education lawyer advised school districts nationwide that a federal anti-discrimination law known as Title IX, which forbids sex discrimination in education, also protects the rights of transgender students to use restrooms and changing facilities that are "consistent with their gender identity."
In April, the 4th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld that policy and ruled for Gavin Grimm, the 17-year-old transgender boy who sued the school board.
The appeals court issued an order telling Gloucester school officials they must abide by the administration's interpretation and allow Grimm to use the boy's restrooms.
In Wednesday's order, the Supreme Court said it had granted the school board's emergency request to temporarily to "stay the mandate" of the 4th Circuit until the school can file an appeal when the court returns.
The court's action, while not a ruling, signals at least four justices are skeptical of the Obama administration's stance. While that's enough to grant a petition to review the lower court ruling, it will take at least five votes to issue a ruling.
Since the court has been ideologically split since the February death of Justice Antonin Scalia, a 4-4 tie on the transgender case is likely and would result in the affirmation of the 4th Circuit's ruling.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan said they would have turned down the emergency appeal in the Gloucester case and allowed the lower court's ruling to take effect.
The request for an emergency stay was filed with Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined in granting the request.
Lawyers for the ACLU had urged the court to turn down the request on the grounds the school board would suffer "no irreparable harm" if the boy were permitted to use the boy's restroom.
"We are disappointed that the court has issued a stay and that Gavin will have to begin another school year isolated from his peers and stigmatized by the Gloucester County school board just because he's a boy who is transgender," said Joshua Block, senior ACLU staff attorney. "We remain hopeful that Gavin will ultimately prevail."
Wednesday's order comes as a federal judge in North Carolina is weighing arguments on whether to put on hold the state's controversial measure known as HB 2. It says public restrooms and changing facilities, including in schools and colleges, must be segregated by sex, as defined by "the physical condition of being male or female which is stated on a person's birth certificate."
Lawyers for the ACLU and Lambda Legal urged U.S. District Judge Thomas Schoeder on Monday to block the state from enforcing the measure while both sides prepare for a trial on the issue in November. The judge said he would rule on the request shortly. But the Supreme Court's order may influence the judge's decision.
The appeal in the Gloucester case raises an issue that has long interested the conservative justices. Congress did not pass a new law to clarify the rights of transgender students, and the Education Department did not issue a new regulation. Instead, its lawyers sent a "guidance" to school officials advising them that in the department's view, Title IX, adopted in 1972, means that excluding transgender students from facilities that fit their gender identity amounts to illegal sex discrimination.
In their appeal, lawyers for the Gloucester school board said the case has "nationwide importance." And they argued the high court should forbid federal executive agencies, including the Education Department, from issuing sweeping new interpretations of old regulations.
The school board said it intended to file an appeal petition by the end of this month that formally asks the high court to review the 4th Circuit's decision. If the justices agree to hear the case, which now seems likely, it would be one of the court's major cases of the coming term. If a 4-4 deadlock is averted, the case could yield the court's first ruling on the issue of transgender rights.
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