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On Wednesday, the U.S. Supreme Court voted 5-3 to issue a temporary stay of a ruling by the 4th U.S. Circuit Court of Appeals that paved the way for a Virginia transgender student to use the boys’ restroom.
The stay will remain in effect until the court decides whether to hear an appeal by the Gloucester County School Board challenging the Fourth Circuit’s findings. As a result, albeit temporarily, the school board is within its rights to relegate Grimm to using either the nurse’s bathroom or a series of single-sex restrooms that used to be broom closets.
All four conservatives on the court voted to issue the stay, as did Justice Stephen Breyer, although Breyer noted that his vote was a mere “courtesy.” The Fourth Circuit’s historic ruling, issued in April, found that Title IX’s prohibitions on sex discrimination extend to transgender students when they are discriminated against on the basis of their gender identity.
Because the Fourth Circuit had ruled that Grimm was protected by Title IX, Grimm’s lawsuit — part of which had been tossed out — was restored and he was able to pursue an order to stop the school board from enforcing its restroom policy for transgender students. In keeping with the Fourth Circuit’s ruling, U.S. District Judge Robert Doumar granted that injunction.
Because there have been so many appeals and responses in the Grimm case, it can be confusing to keep track. What the Supreme Court is deciding on is whether to take up just the finding that Title IX applies to transgender students. A decision in favor of Grimm — or even a refusal by the Supreme Court to hear the case at this time — would allow the preliminary injunction to go into effect, and Grimm would be allowed to use the restroom while his lawsuit moves forward in district court.
In the case currently before district court, Grimm’s lawyers have alleged that the Gloucester County restroom policy violates not only his rights under Title IX, but the Equal Protection Clause of the Fourteenth Amendment. A favorable decision for Grimm in that case would likely be appealed to the Fourth Circuit, which, based on its prior decision, would likely affirm the district court ruling. A subsequent appeal by the school board would then head back to the Supreme Court, which could either refuse to take the case, thereby affirming the appeals court’s decision, or could hear the case and issue a ruling on whether the restroom policy is indeed constitutional.
The American Civil Liberties Union (ACLU) and ACLU of Virginia, which are representing Grimm, issued a joint statement expressing disappointment at the Supreme Court’s decision.
“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’s transgender,” said Joshua Block, a senior staff attorney with the ACLU. “We remain hopeful that Gavin will ultimately prevail.”
The National Center for Lesbian Rights, which filed an amicus brief in the case on behalf of the World Professional Association of Transgender Health and other medical and mental health organizations, also issued a statement.
“While disappointing, today’s ruling by the U.S. Supreme Court is just a temporary delay,” NCLR Legal Director Shannon Minter said. “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.
“Across the country, courts and policymakers are recognizing that discrimination against transgender people is sex discrimination,” added Minter. “We are confident that if and when this issue reaches the Supreme Court, the Court will affirm that recognition.”
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