Story highlights The ruling is a victory for the school board and a loss the student who won at the lower court level

The case comes as the issue of transgender policies have caused controversy across the country

Washington (CNN) A divided Supreme Court agreed Wednesday to temporarily block a lower court order that had cleared the way for a transgender male high school student to use the boys' bathroom in a Virginia public school this fall.

The ruling is a victory for the school board and a loss -- for now -- for Gavin Grimm, the student who won at the lower court level.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would have left the lower court decision undisturbed. It took five justices to act, and Justice Stephen Breyer wrote separately to say that he concurred in the decision in part because granting the stay would "preserve the status quo" until the court has a chance to consider a petition for cert. "I vote to grant the application as a courtesy," Breyer wrote.

"The order comes as something of a surprise given the current composition of the court," said Steve Vladeck, CNN contributor and professor of law at the University of Texas School of Law.

"In the short term, this means the relationship between transgender identity and sex discrimination will be left in limbo until the Supreme Court resolves it one way or the other. But given that Justice Breyer's vote was only a courtesy, it's hard to see the court being able to settle this matter until a ninth justice is appointed," Vladeck said.

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