The Gloucester County School Board has once again dug in its heels, asking U.S. District Court Judge Robert Doumar to stay the injunction he issued on June 23 that allows transgender student Gavin Grimm to use the boys’ restroom. The board claims, among other arguments, that refusing to stay the injunction while the board appeals to the U.S. Supreme Court will cause the board “irreparable harm” by undermining its authority and possibly leading parents to pull their children from school.
“Federal Rule of Civil Procedure 62(c) permits the Court to stay a preliminary injunction pending appeal upon considering the following factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure other parties interested in the proceeding; and (4) where the public interest lies,” lawyers for the board wrote in their motion.
Addressing each of those points, the board has argued that their appeal of an earlier decision by the 4th U.S. Circuit Court of Appeals to U.S. Supreme Court Chief Justice John Roberts is likely to succeed. They note that the current Supreme Court has called for reconsideration of Auer v. Robbins, a case in which the court set a precedent of giving deference to federal agencies to interpret their own regulations. Conservatives have long hated this ruling, arguing it gives power that should belong to the legislative branch to the executive branch of the government. Social conservatives hate it because Auer allows agencies like the U.S. Department of Education to issue and interpret regulations as they see fit. One such ruling they objected to was a case out of Illinois finding that Title IX’s prohibitions on “sex discrimination” apply to transgender students discriminated against on the basis of their gender identity.
The board also argues that Grimm will not be harmed by staying the injunction, arguing that the school has not only allowed him to use the bathroom in the nurse’s office, but has converted three broom closets into new unisex bathrooms available for use by any student. They also claim that the board and Gloucester County High School will be “irreparably harmed” by a failure to stay the order, and that doing so is in the public interest.
The board specifically cites expected outcry from parents and students at allowing Grimm to use the boys’ restroom, thereby jeopardizing administrators’ ability to maintain order at school. The board’s lawyers also argue that “parents may decide to remove their children from the school system after reaching the understandable conclusion that the school has been stripped by the G.G. decision of its authority to protect their children’s constitutionally guaranteed rights of bodily privacy.”
But the ACLU and ACLU of Virginia, which are representing Grimm, have pushed back with their own response to the school board’s claims. They note that the Fourth Circuit, which essentially steered Doumar towards issuing the injunction and allowing Grimm to continue with a lawsuit claiming discrimination under Title IX, has already rejected the board’s request to reconsider the case, as well as its request for a stay. Additionally, Grimm’s lawyers refute the notion that the board has established a “strong showing” that their appeal will be successful.
The ACLU also notes that the Gloucester County School Board will not be irreparably harmed by allowing Grimm to use the boys’ restroom, noting that the injunction only applies to Gloucester High School — and not to all schools in Gloucester County, as the board claims. It argues that allowing Grimm into the restroom that matches his gender identity does not infringe on other students’ constitutional rights, but would “irreparably” injure Grimm.
“G.’s senior year is his last chance to attend school in accordance with the legal
protections of Title IX, and without being stigmatized and ostracized by the Board’s discriminatory policy,” the ACLU’s response reads. “G.’s sophomore and junior years have been irrevocably lost and cannot be restored through an award of money damages. Without a preliminary injunction, he will irrevocably lose his senior year as well.”
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