Supreme Court Temporarily Blocks Transgender Bathroom Ruling

Will consider whether to rule on school policies and Title IX.


Lars Hagberg/ZUMA Press/Newscom

Gavin Grimm may not use the men's restrooms at his Virginia high school for the time being.

The Supreme Court has stepped in temporarily and blocked the implementation of a lower court decision that affirmed the right of the transgender teen to use the school bathrooms that match the way he is presenting his gender identity.

The divided decision—five to three—will keep the school board's current order that Grimm may not use bathrooms that contradicts his birth sex, but may use several of the school's unisex bathrooms. Grimm has filed suit claiming that this ban is a sex discrimination violation under Title IX.

The Supreme Court's injunction is only for the purpose of maintaining the status quo while it decides whether it will take up legal challenge and should not necessarily be taken as an indication that the justices are inclined to find in favor of the school district, though the three votes opposing the stay of the ruling were the court's three more liberal justices. If the court declines the case, the block will be lifted, meaning Grimm will triumph over the school.

Here's where things stand legally: The current Department of Justice and the Obama administration in general has argued that discrimination and harrassment targeting transgender people falls under sex discrimination laws. There are a handful of federal court rulings that affirm this position, so it's not something they've invented out of whole cloth. The argument—based on a previous Supreme Court precedent—is that such behavior is a type of discrimination that is based on whether a person demonstrates stereotypical appearances and attitudes associated with a particular gender. The court had previously ruled that such discrimination or harassment as inadmissible and punishable under federal law.

But in the precedent referenced, this was a case of a female employee believing she was being punished for not behaving in a stereotypically female fashion. The Supreme Court has not yet weighed in on whether this precedent should also apply to transgender people. (Read more about this all here.)

In addition, for Title IX cases involving schools, the lower court has ruled that when Title IX's provisions on sex-separated facilities are ambiguous (and Title IX does not address transgender students), school districts should defer to Department of Education recommendations. And that's where the Obama administration's position (and the objections to it from conservative states) enter in. (Update: Jonathan Adler at the Volokh Conspiracy explains why he thinks the lower court's ruling is a legal error here.)

It's still not clear that the Supreme Court will take a case; currently all federal rulings are running in the same direction, so it's not as though there is a federal court conflict that must be resolved. The fact that they've agreed to a temporary block on the ruling should be taken as a sign that they're at least interested. And we can fully expect this temporary decision to be used by both the major parties to rally voters to their sides over the future of the Supreme Court's make-up.