Supreme Court blocks ruling that let transgender Va. student use boys' bathroom

The Supreme Court signaled in an order Wednesday that it is highly likely to grapple with the issue of transgender bathrooms in its coming term.

Acting on a 5-3 vote, the justices put on hold a groundbreaking court ruling requiring a Virginia school district to accommodate a transgender high school student’s request to use the boys’ bathroom.


It’s the first time the high court has shown interest in the transgender bathroom issue, which has prompted nearly half of states to sue the Obama administration over its interpretation of federal civil rights law. The Justice and Education Departments have said transgender students are offered sweeping civil rights protections under federal law, including their right to access bathrooms and locker rooms in alignment with their gender identity.

The American Civil Liberties Union is representing student Gavin Grimm in the case. Senior staff attorney Joshua Block said, “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. We remain hopeful that Gavin will ultimately prevail.”

Francisco Negrón, general counsel and associate executive director of legal advocacy at the National School Boards Association, said the high court eventually will have to resolve the issue of transgender bathroom access.

"A quick court resolution would be a welcome thing," he said, as schools and districts are struggling with conflicting messages and policies from the federal government, states, districts and court cases.

Attorneys for the school board said they welcomed the Supreme Court’s action "as the new school year approaches."

"The Board continues to believe that its resolution of this complex matter fully considered the interests of all students and parents in the Gloucester County school system," the school board said.

The Justice Department declined to comment.

Justice Stephen Breyer joined with the court’s four GOP appointees to lift—for now—the obligation of the Gloucester County school system to allow Grimm to use the bathroom of his choice in accordance with Obama Administration guidance.

In a statement accompanying the order, Breyer said he was agreeing to the stay as a “courtesy” because the court is in recess and putting the ruling on hold "will preserve the status quo." The three other Democratic appointees opposed the stay.

However, since only four justices are needed to grant review in a case, the fact that the four Republican appointees favored the stay sought by the school district is a strong sign the high court will agree to take up the case this fall.

Nathan Smith, director of public policy for the LGBT advocacy organization GLSEN, said "preserving the 'status quo’ unfortunately means allowing a school district to discriminate against a transgender student."

"But it doesn’t seem like the decision here was on the merits of the case, so we feel pretty confident that they’ll ultimately rule in a just way," Smith added. "But at least in the short-term we’re pretty disappointed.”

A Richmond, Va.-based federal appeals court ruled in April that the U.S. Department of Education acted within its authority when issuing guidance to school systems on the transgender bathroom issue and that Grimm’s school had a duty to follow it.

The school board filed an emergency application with SCOTUS last month, asking Chief Justice John Roberts to suspend a lower court’s decision granting Grimm bathroom access while they ask the Supreme Court to take up the case. As is customary, Roberts referred the request to the full court.