“GRANTING THE STAY WILL PRESERVE THE STATUS QUO,” JUSTICE BREYER WROTE, “I VOTE TO GRANT THE APPLICATION AS A COURTESY.”
The court, which is currently short one justice, voted 5-3 in favor of granting an emergency appeal from the Gloucester County School Board in Virginia to block student Gavin Grimm from accessing the boy’s restroom. The move comes despite a lower court victory in April that ruled in Grimm’s favor. Justice Stephen Breyer, who implied that he did not support the appeal, tipped the scales in the decision by joining the court’s four conservatives as a courtesy in order to maintain the “status quo” until the court reconvenes after their summer break in the fall. “In light of the facts that four justices have voted to grant the application referred to the court by the chief justice, that we are currently on recess and that granting the stay will preserve the status quo,” Justice Breyer wrote, “I vote to grant the application as a courtesy.”
Justice Breyer joined Chief Justice John G. Roberts Jr., along with Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. in granting the stay. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor were in favor of turning down the school board’s appeal. The school board claims their current policy “protects basic expectations of bodily privacy of Gloucester County students.” Their current policy forces Grimm to use three specific single-user restrooms and one located in the school nurse’s office.
“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.”
Grimm’s lawyers state the school’s current policy violates Title IX, a federal law banning sex discrimination in schools, a stance which aligns with recent guidance provided by the Obama administration. Joshua Block, a lawyer for the ACLU, expressed his disappointment in temporary action stating “no irreparable harm will occur” if Grimm is allowed to use the boy’s restroom while the court waits to review the ruling. “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,” Block said in a statement.
This temporary stay comes on the heels of a 33 state battle centered around the Obama administrations guidance on transgender bathroom access. 21 states have filed suit against the guidelines while 12 have filed an amicus brief supporting them. The court seems to be evenly divided on the issue and Wednesday’s action may indicate a difficult road ahead in obtaining a decisive ruling. Without a 9th Justice who would split the vote, the issue could be pushed further down the calendar until 2017, when a new justice would be nominated by a new President of the United States. This means the 2016 Presidential Election could have a profound effect on the future of transgender rights depending on which party wins.
This is alarming that the Supreme Court would deny a student his rights so they may go on vacation and push the issue into the fall session. Meanwhile, Gavin Grimm will have to endure the mental effects of the decision. The school states they want to protect “basic expectations of bodily privacy.” What they are really saying is that they want to protect bodily privacy for cisgender students, all the while denying the same rights for transgender students.