Supreme Court temporarily blocks transgender restroom policy

The U.S. Supreme Court late Wednesday announced it would temporarily block a lower court ruling requiring a Virginia school district to open its campus locker rooms to a transgender student.

The Gloucester County School Board had asked the Supreme Court to put the 4th U.S. Circuit Court of Appeals ruling on hold as school gets started this fall and its lawyers prepare a full appeal of the lower court ruling.

A three-judge panel of the 4th Circuit in April ruled in favor of Gavin Grimm, a high-school student who is biologically female but identifies as a male. Gavin, the student’s legal name, has started hormone therapy but has not undergone sex reassignment surgery.

Gavin sued the Gloucester County School Board over its policy requiring students to use the restrooms that correspond to their biological sex. The board set the policy in 2014 after Gavin’s use of the boys’ restroom became public knowledge and parents expressed concerns about students’ privacy. A lower court ruled the school’s provision of private restrooms for transgender students was a reasonable accommodation of their needs, but the appellate court disagreed.

While disappointed in the ruling, gay rights groups noted the court’s action shouldn’t be interpreted as an indication of what it might do in the future with challenges to policies requiring schools and businesses to open restrooms based on gender identity and not biology.

Three of the justices—Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—would have left the lower court ruling in place, indicating how they might vote when the case eventually comes before them. Justice Stephen Breyer sided with the justices willing to put the order on hold, but only “as a courtesy.” Court-watchers already speculate Breyer would side with the liberal justices to uphold transgender-friendly restroom policies.

“Especially in light of Justice Breyer’s statement that his vote for a stay was a mere ‘courtesy’ to preserve the status quo while the court considers whether to review the decision, this should not be taken as any sign of where a majority of the court is leaning on the substantive question of whether Title IX protects transgender students,” the The National Center for Lesbian Rights said in a statement.

Grimm filed suit against the Gloucester County School Board before the Obama administration issued its May 13 directive to every school district in the country saying Title IX, a federal law to prohibit discrimination on the basis of sex for federally funded education programs, included gender identity and schools needed to update their policies to reflect the new interpretation. So far, 23 states have filed suit against the order.

Lawsuits also are pending over HB2, the North Carolina law that requires government and school building bathrooms to be restricted based on biology rather than gender identity. LGBT activists say such laws discriminate against people who don’t identify with their birth gender. Opponents say open restroom policies violate common-sense privacy norms, especially for women and girls who don’t feel comfortable having biological males in their restroom and locker room facilities.