The U.S. Supreme Court has blocked for now lower-court decisions requiring a Virginia school district to enable a female student who identifies as male to use the boys’ restroom.
The justices announced Aug. 3 they had put on hold a June ruling by a federal court ordering the Gloucester County School Board to permit Gavin Grimm to use the male restroom while the case is settled in court. Grimm, 17, is a female biologically but considers herself a male.
The Supreme Court’s order, with five justices agreeing on the stay, means Grimm will not be able to use the boys’ restroom at school until the justices weigh in on the case. If the high court refuses to review the lower court opinion in the case, the hold will end immediately. If the justices accept the appeal, the stay will remain in force until they issue a ruling.
The order is the latest action in a battle being waged in schools regarding transgender rights – a debate that advocates for such rights have been winning in recent months.
The Fourth Circuit Court of Appeals struck down in April a federal judge’s decision by ruling the school board of the eastern Virginia county violated federal law by refusing to permit transgender students to use the restrooms of the gender with which they identify, regardless of their biological sex. In a 2-1 opinion, the Fourth Circuit panel said the ban on sex discrimination in the Title IX education amendments encompasses gender identity.
In May, the Obama administration issued a sweeping directive on transgender rights. Officials with the Departments of Education and Justice told public school districts, as well as colleges and universities, to allow transgender students to use the restrooms and locker rooms of their gender identity. The guidance was not legally binding, but it implied noncompliance could result in the loss of federal aid.
The Gloucester County School Board requested the entire Fourth Circuit Court rehear its case, but the judges refused in May. In June, the federal court responded to the appeals panel with an order in favor of Grimm, and the school board asked the Supreme Court to block its enforcement.
Supporters of the school board and its policy welcomed the high court’s Aug. 3 order despite its temporary nature.
Rodney Autry, a Southern Baptist pastor in Gloucester County, said he is “heartened” by the Supreme Court’s action.
He hopes the result will be “sensible solutions which guarantee our school children are assured that awkward, embarrassing and potentially dangerous conditions are not imposed on them by judicial fiat,” Autry said in written comments for Baptist Press (BP). “Transforming standards on such delicate matters without the direct input of parents and taxpayers is unconscionable.”
Autry, senior pastor of Union Baptist Church in Hayes, Va., commended the school board’s persistence and professionalism in the case.
“I trust that when the case is fully made before the [Supreme Court] for our Gloucester schools to remain safe zones sexually that wisdom will prevail among the justices and common-sense, civil protections will continue among school-age children who have no vote in their own welfare,” said Autry, who signed onto a friend-of-the-court brief in support of the school board.
Ryan Anderson of the Heritage Foundation said the justices “did the right thing in hitting the pause button.”
Public schools are trying to accommodate transgender students while protecting the privacy of other students, said Anderson, senior research fellow at Heritage, in a written statement. He expressed hope the high court would review the Fourth Circuit opinion and “protect the authority of local schools to make policies that are in the best interests of everyone.”
Advocates for transgender rights criticized the court’s decision.
The Human Rights Campaign (HRC) – the country’s largest gay, bisexual and transgender civil rights organization – called the order “deeply disappointing.”
It subjects transgender students “to unsafe and discriminatory conditions as they begin returning to school in the coming weeks,” said Sarah Warbelow, HRC’s legal director, in a written statement. “While we remain optimistic that this is a temporary setback in the larger effort to ensure that transgender students are treated with dignity and respect, time is of the essence and any delay infringes on these students’ right to a safe and quality education.”
In the Supreme Court’s order, Associate Justice Stephen Breyer departed from other liberal justices in approving the stay. Breyer said in a brief statement he voted in favor of the stay “as a courtesy,” partly because it would “preserve the status quo” at the time of the Fourth Circuit’s ruling.
The court’s three female members – Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – opposed the stay.
While the Obama administration called for protection for transgender students in its guidance, critics of its directive and the Fourth Circuit ruling cited the safety and privacy of other students as reasons for their opposition.
The Gloucester County school district provided a separate restroom for Grimm, the transgender student who brought the legal challenge. She said, however, being forced to use the alternative restroom further stigmatized her. The Obama administration backed Grimm’s position.
Grimm underwent hormone therapy, legally changed her name to a male name and asked to be treated as a male before her sophomore year of high school in 2014. The school permitted her to use the boys’ restroom for “about seven weeks” before parents of other students complained, according to the ruling.
When the Fourth Circuit issued its opinion in April, Southern Baptist ethicist Russell Moore told BP the separation of males and females in restrooms “isn’t discrimination.”
“It’s common sense policy that protects the vulnerable,” said Moore, president of the Ethics & Religious Liberty Commission. “Treating transgender students with respect doesn’t require sexualizing school locker rooms and restrooms.”
Messengers to the 2014 Southern Baptist Convention approved a resolution regarding transgender identity that “affirm[ed] God’s good design that gender identity is determined by biological sex and not by one’s self-perception.” The resolution “regard[ed] our transgender neighbors as image-bearers of Almighty God and therefore condemn[ed] acts of abuse or bullying committed against them.”
The resolution also said, “We invite all transgender persons to trust in Christ and to experience renewal in the gospel.”