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.

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  1. Great alt-text!

    (Looks like Optima.)

  2. OT:

    Today I went with my wife to a doctor appointment and as we were leaving and taking the elevator down, I had one of those interesting and humorous experiences that sometimes happens and takes our mind off just how fucked up everything is.

    We got in the elevator along with 3 other people, one lady with 2 kids, one an infant in a stroller and the other, probably 4 or 5 years old, cute little guy who immediately starting chatting it up. He looked at my wife and I and said ‘are you guys going up too!?’. My wife said something, but an older lady on the other side said ‘We’re all going up and when we get there, we’ll be as close to heaven as we can get’.

    The kid says matter of factly ‘Heaven is for gay people!’.

    The elderly lady that led to that response gasped, mouth wide open and eyes wide and said ‘Oh my!’. I wanted to burst out laughing, but I somehow did not. My wife seemed to have missed it completely, and the mother of the boy showed no reaction at all.

    Once we got to ‘Heaven’, the roof of the parking garage, my wife and I and the elderly lady were the only ones left and when we exited, I said ‘I love little kids, only because they say whatever they want to with no 2nd thoughts’. Elderly lady looks at me and said something like ‘That’s for sure!’. My wife still did not know what was going on.

    When we got to the car, I told my wife what the kid said and she looked at me Incredulously for a moment, then laughed, then texted this to all her friends.

    1. Hmpf. Stop humanizing them. Sure, the orphans in my mines say the damnedest things, but each of their utterances is lost time that could be spent productively. What kind of libertarian are you?

    2. I’m sure the little whippersnapper meant Happy when he said Gay.

      1. I was sure he just repeated something somehow not exactly in the right order or context that he heard one of his parents or other relatives say. No matter, ‘Heaven is for gay people’ is my fav phrase for a while.

      2. Idk. Kinda makes sense. I mean church is gay, why wouldn’t heaven be.

    3. Clearly the kid was making threats. Classes will be mandatory.

      1. Baby, somebody better call heaven ‘cuz they’re about to get another angel tonight.

    4. ‘Heaven is for gay people!’.

      Maybe its the name of a local club?

    5. I personally can’t help myself from debating metaphysics with kids. I’d probably ask, “what about my dog though? he’s kinda gay. leg gay.”

    6. “… we were leaving and taking the elevator down….”

      Hyperion, in your story the elevator took you and the other (mathematically incongruous) occupants to the roof.

      OT: Live stream libertarian presidential town hall (CNN now).

  3. so wasn’t the whole thing with gay rights or sex/racial rights is that they are imutable?

    Like how it’s wrong to be racist because you were born that way, etc. You don’t have control over what skin color, XX/XY chromesome pair, or sexual attraction you have.

    Now it’s all what gender you happen to think yourself is today, regardless of what your biological sex is. How is that not a mental condition?

    Same with religion — my sjw roomie said Trump was racist against Muslims. Well Islam is a religion that people choose, not a race, so why should that be immune from critisism?

    1. Your roommate is a latent racist. We will send along an escort to Room 101.

    2. To be fair to your roommate, the majority of Muslims in the world live in places where the the punishments for changing their minds about being Muslims involves punishments a bit harsher than a strongly worded letter.

    3. some college freshman girl will be happy to explain the rules to you. Just don’t ask her any questions or she’ll get very frustrated and angry at you.

    4. Well, the current though is that gender is in the brain, but it is not chosen. Let’s say it is some neural structure formed in utero that may be at odds with your chromosome. As for Islam, most people do not choose their religion. It is pounded into their brain at an early age and many, if not most, simply are unable to shake it off, shake it off.

      On the other hand, it is possible that being racist is also congenital, so may be we should not be so hard on racists, because may be it is a condition, like being transgender.

      1. It seems incredibly unlikely that the hormones that shape a person’s physical body would somehow not affect their physical brain. To me this is like saying someone could be born all male but with a female leg. It really just crackpottery that’s become acceptable because it seems impolite to point out to mentally deficient people they are crackpots.

        It’s also not clear to me that a person’s religion is beaten into them any more than their preference for anything else.

        1. Nobody ever tried to make a young me feel guilty about the death of ice cream and accept it into my heart as my personal savior.

        2. It’s ‘beaten into you’ culturally, in a lot of places. It’s not just some amazing coincidence that so many of my friends and neighbors were, like me, raised Southern Baptist. That’s just the local religion, and it’s expected of one to practice it. One’s parents wouldn’t accept their kid suddenly getting ideas about, say, being a Zoroastrian… in which case it probably *would* involve a literal beating. Now, Baptists are pretty peaceful creatures mostly, but imagine the analogous situation in a predominantly Moslem country.

  4. EEOC orders investigation to look for racism – a coworker of the complainant wore a Gadsden Flag cap.

    The case arose in the federal government workplace, but the precedent would apply to private businesses, as well.

    1. Okay, switch to wearing Jegs caps, instead.

      I’ll never understand how it’s a good idea to stop an opponent self-identifying.

      1. I wear my jelq cap to work sometimes.

    2. The case arose in the federal government workplace, but the precedent would apply to private businesses, as well usual.

    3. Wearing “Don’t Tread on Me” insignia could be punishable racial harassment

      fucking hell.

      Complainant stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a “slave trader & owner of slaves.”

      That would basically apply to any images that date from prior to the 20th century.

      Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”

      that sentence doesn’t even compute on its own terms. ‘Historical’?…but its referencing a political group that’s ~5 years old?

      According to Wikipedia its also associated with US Mens Soccer

      I guess the idea here tho is that any viewer can project “what they want things to mean” onto them, and that’s their prerogative.

      What’s actually fucking disturbing about this whole story is not the retarded parsing of how anything can be potentially made-dangerous by random-association…. but rather that there are career professionals in the EEOC who spend their days engaged in these kinds of Star Chamber witch-trials…. and not only that? that they are setting the standards by which ALL employers will be judged under Harassment statutes.

  5. From a legal perspective, “identity” is a seriously slippery slope.

    This definitely should be decided by the Supreme Court. Of course, the sad part about it is we’ll know what the ruling is before it happens depending on who gets to put the new justice in.

    Wouldn’t it be nice if the Supreme Court wasn’t partisan and they actually decided each case on its own merits instead of the justices ruling based on their own personal preferences?

    1. The liberals were torn between not wanting to be seen as anti-transgender and wanting to take the case so they can set another idiotic precedent.

      We know who’s going to nominate the next justice. A mile-wide meteorite impact next January 20 is more of a threat to a Clinton presidency than Donald Trump is.

    2. You are raining on Scott’s big gay parade

      1. It’s like rah-eh-aaain, on your big gay parade,
        It’s like Winston’s mooooom, when you already got laid,

    3. Wouldn’t it be nice if the Supreme Court wasn’t partisan and they actually decided each case on its own merits instead of the justices ruling based on their own personal preferences?

      I keep harping on this issue, but it cannot be stated enough. Watching these people back their way into rulings for partisan or ideological reasons is not only painful, it is destructive to the very idea of a constitutional government of laws, rather than a tyranny of men.

  6. The latest dispute over religious exemptions

    A Unitarian Universalist congregation wants to put solar panels on its meetinghouse but the meetinghouse is in a historic district and the relevant bureaucrats denied permission, apparently because they didn’t have solar panels back in 1817 when the meetinghouse was built, so the panels would take away from the historicalness or something.

    The Unitarian Universalists claim this violates their freedom of religion – they say they should be able to use solar panels as part of their faith, which of course includes defending the environment against global warming.

    This isn’t a Sky Daddy dispute since the Unitarian Universalists, to put it mildly, don’t require belief in a Sky Daddy.

    This is a non-theistic religion invoking freedom of religion.

    1. Honestly – sky daddy or not, I hope they win. Historical districts are Hitler. And Sky Daddy exemptions just expose the hypocrisy of the the laws they are exempt from.

      1. That’s my point – it’s not a Sky Daddy exemption, it’s an exemption for all religions – the government has to justify infringing on *anyone’s* religious practice. There are non-theistic religions, like UUs.

        1. Naturally, the Unitarian Universalists think religious freedom shouldn’t apply to those other, more icky religions.

          Notice the use of the word “love” to refer to “people with guns telling people how to run their businesses.”

          So I guess it’s like the Ministry of Love.

          1. Yeah, they’re a very left wing organization. Very political. Probably more political organization than church. Left never mentions them though when they talk about taking away tax exempt status from evangelical churches for talking politics.

        2. I know – I’m saying that even if they were a traditional theistic organization arguing under religious freedom I’d hope they’d win because that RFRA bullshit is still better than the historical district bullshit.

    2. My religion is self-theistic, but my faith is apparently too weak.

      1. Ahh, solipsism. You still can’t do without the external apparations to effect your will.

    3. fuck historical districts

    4. I’m confused. Do Unitarians not believe in enough childish nonsense to count as a real religion? But I’m pretty sure they do, though.

      1. childish nonsense

        “The god who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

        “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever”

        “”We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain inalienable rights, among these are life, liberty, and the pursuit of happiness”

        1. Thomas Jefferson, the deist? Come on, Eddie.

          1. So you claim he *didn’t* say these things? Or that it’s unfair to bring it up because he wasn’t an orthodox Christian? If anything, his liberal religious views, and his popularity with the secular smart set, makes his God-talk all the more significant.

            1. You know what a deist is, right?

            2. Quick, post some Einstein quotes about god while you’re at it. Make sure not to consider what he meant by the word in the context of his system of belief as a whole. That’s the way to make Jesus happy.

              1. “Fuck God.”

                – Albert Einstein

            3. Eddie, many of the founding fathers, including both Jefferson and Franklin, were deists, who believed in the “clock maker” type of God. They looked at the universe, and could think of no explanation than that somebody must of made it. Today, I suspect they would be atheists, or at least agnostic.

              1. Jefferson was a *theist,* which is my point.

                To the atheists, the Declaration of Independence is childish nonsense simply because it speaks of a God who gives us rights.

                Scrubbing Jesus from the equation doesn’t help the atheists – they still have to face the fact that by their own principles, Jefferson and the Declaration of Independence, and lots of other other stuff Jefferson said, were superstitious Sky Daddy nonsense.

                It’s hard for atheists to accept this because they dearly want to have Jefferson on their side because of all the *sick burns* Jefferson made against orthodox Christianity.

                So it’s tough for atheists to accept the fact that Jefferson (as opposed to some hypothetical modern-day atheist Jefferson) actually spoke in non-ironic terms about God-given rights and God’s wrath.

                1. Scrubbing Jesus is the name of my new band.

                  1. Some atheists seem to think that all they have to do is find someone who rejected Christianity, and that person is automatically on their side.

                    Jefferson wasn’t an orthodox Christian, but he was no more an atheist than Mohammad.

                    1. I think that there are certain atheists who make it quite clear that it’s the Christian God with whom they have a beef.

                      So they want to enlist other non- or anti- Christians onto the atheist side.

                      And Jefferson, with his *sick burns* against Christianity as traditionally conceived, and his status as an actual intellectual with a library and everything, and his status as a Founding Father, is someone these atheists dearly want on their side.

                      So they put tune out anything positive Jefferson might say about God, because that doesn’t conform with the narrative.

                2. Eh… I think it gets a little more complicated than that. I think “God given rights” is more of a shorthand for “rights that we have because we have agency”. I understand that I am moving goal posts, etc., but I really don’t think that Jefferson believed our rights rested on the existence of a creator.

                  1. We have his actual words…did he say anything to the contrary?

                    1. He made clear that he thought he had a *purer* belief in God than regular Christians, because his religion was purged of what he considered superstition (the Trinity, the Virgin Birth, the miracles of Christ, etc.).

                    2. Modern atheists make the same mistake as the Federalists, equating theistic belief with Christianity and claiming that by rejecting the latter Jefferson was rejecting the former.

        2. I waa totally endowed

          1. What cup size are you?

        3. Still childish nonsense even though Jefferson spouted it also. Einstein said a bunch of stupid shit also.

          What I don’t get, however, is why we all feel the need to needle each other over the, otherwise irrelevant, religious belief/lack of belief and why, knowing the community here, when one side says something unflattering the other side has to jump up all insulted.

          1. I have this perhaps unworthy desire to mention that even the most religiously liberal of the Founders believed in God-given natural rights as the whole basis of civil liberty.

            If the Declaration of Independence is childish nonsense, perhaps Nietzsche was right and morality is all about power and not about respecting rights.

            1. “why, knowing the community here, when one side says something unflattering the other side has to jump up all insulted.”

              Because this isn’t a kindergarten class and it *does* matter who started it.

              I give an example of non-theistic people asserting their religious freedom, because I wanted to show you didn’t have to be a Sky Daddy-ist in order to have First Amendment rights.

              So Warty thinks it’s a good time to bring out the insults.

              1. There is also the fact that, if you believe accepting Christ gives a person eternal life and saves them from eternal damnation, you kinda have an obligation to try to save lost souls.
                I don’t believe that, but I definitely understand the motivation for those who do.

                1. Sure, but I don’t think I’m going to make people meet Christ via the Internet. Maybe they’ll do further investigation/prayer/meditation on their own, and if so I hope my remarks haven’t turned them off.

                  Maybe something I say can make someone say “let me investigate further,” but I won’t pretend this is my motivation, maybe it should be.

                  1. But by all means meditate/pray, look up the local Catholic parish, kick the tires…if I inspire anyone to do that it would be great, though I’m afraid inspiring such behavior isn’t the foremost consideration in my mind, I kind of like to argue, if you can believe it.

                    1. You like to argue? Wow, you’re definitely the only one here who likes to argue.

  7. You can judge a society by how it treats its…

    1. It’s a trick question: society is all there is.

    2. Reptiles?

      1. You overgrown iguanas deserve the abuse.

    3. Reality TV stars?

    4. Hitler?

    5. tits?

  8. 2 minute Johnson

      1. Try again. Jeeeeez.…..origwx.cnn

        1. Wasn’t that the theme song for the final season of Andy Griffith?

            1. It’s so hard to keep up with popular culture. Glad I can come here to be enlightened.

  9. Heh, I almost forgot. Yet another interesting story, even though no milfs were nailed, yet…

    So, later in day, wife and I were hanging out downtown, walking and occasionally, much to my dismay but unavoidable, wife had to enter a a shop to ‘look’.

    So we were in a shop while she ‘looked’ and I just stood there bored almost completely out of my mind. I noticed that there was a very tall, statuesque like lady right in my right peripheral field of vision, maybe 3 ft from me, browsing a clothing rack. Now I didn’t mean to notice this, but she was wearing hot pink heels, a pink skirt, and as I said, very tall. Then the lady turned and walked right towards us. Just as a reflex, I looked up and so did my wife. It was one of those ‘are we blocking the aisle’ moments. The lady looked right at my wife and smiled. Now this is something my wife gets all the time as she is always smiling and has that friendly vibe to her. I was thinking, holy shit that lady is tall, I mean like 6’2″ minimum. Then I thought, there’s something strange about her. Then it just hit me. I was sort of checking her out when it hit me. That’s not a woman. So I watched her walking away and sure enough, it was a man, no doubt, none at all. Xe was way more attractive than Caitlyn, by far, but no doubt, a guy. Women don’t walk or more like that, it’s too easy to tell.

    1. Were you checking her out:). NTTAWWT.

      1. Dude, I couldn’t help it. Tight skirt, pink sheer blouse, hot pink heels, and that tall? She actually looked pretty good, except that ‘she’ was a guy, lol. The reason I could tell is that I was watching her browsing the clothing displays and walking around. Women and men have completely different movements and expressions, etc. I asked the wife about her and she only said ‘wow, she is so tall!’, and I said ‘that’s because she’s a guy’.

        1. I mean yeah what are you gonna do.

          1. I’m sad that she wasn’t a lady.

        2. I said ‘that’s because she’s a guy‘.

          SO WRONG

          1. Libertarians don’t have to be PC. In fact, we sort of pride ourselves on NOT being PC, even if it’s more convenient to be. Well, it’s the one thing we have.


              1. We’re going to need a bigger safe space

            2. Are you saying Trump is a libertarian then?

              1. He’s the greatest libertarian. All other libertarians are phonies.

                1. His not going to make me bake sweets for ISIS like some other people.

  10. Finally, an important story. Don’t talk to me for a moment, I want to be able to focus while I read this.

  11. how is this a title ix issue? title ix is “sex” not “gender idenity”

    not one mention of the word gender in:

    “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that….”

    1. What happens when one of the guys who’s brought up on rape charges before the Title IX kangaroo court says that he identifies as female.

    2. Apparently because, for example, a male who thinks he is girl being denied use of the female facilities is being discriminated against because of his sex.

      There is also the interesting thong that segregation based on sex is terrible, but segregation based on gender is just fine.

  12. Nice to see that Reason is finally abandoning even the pretense of being a libertarian outlet. Not one single mention of the libertarian position on this issue, not even a tepid disclaimer buried in the middle of the middle paragraph.

    1. The libertarian position is to complain about homo fascists having special rights that they user to indoctrinate our kids into homofaggery. Or so I’m told.

      1. homofaggery

        Wouldn’t that be, like… reverse faggery? Just being straight?

        1. No, I think it means that you like the same sort of faggot that you are yourself. Like twinks that only dates twinks or a bear that only wants his buddies in the same bloomin’ onion fan club.

          1. I thought bears and twinks are the horseshoe magnets of faggery, great when paired together but repulsive to their own kind.

            1. That’s why homofaggery is such a rare condition.

              1. Whatever it is, it deserves more federal funding.

      2. homo fascists

        Those are fascists who only oppress other fascists?

        I can only presume it goes down like this.

      3. Maybe you need to start hanging with a different crowd.

    2. aftertouch,

      What, in your opinion, is the small or large “l(L)bertarian position on this issue”?

      This is not a serious question.

      1. If you’re not serious, I don’t see any point in responding to you.

    3. No government involvement necessary would be the position. Wouldn’t think that needs stated.

      1. C’mon, can’t we give the less enlightened a little push? Govt is known for its gentle touch.

      2. Well it is customary to state that while complaining about what is being done instead.

      3. And yet multiple governments are involved…. with no comment about whether this should be.

      4. Indeed, one wonders why Shackford bothered to post this story if there is no libertarian angle. I thought Reason was beyond covering politics and law like a horserace.

    4. Not one single mention of the libertarian position on this issue

      I am firmly in the “pee standing up” -branch.

      1. Please stop pooping in urinals.

        1. Sorry, i only poo in eastern style squat-toilets. For health reasons. You have no idea how hard they are to find. I have to hold it for *days*

          1. Just poop in the back of an Uber like normal people.

          2. Bidets have saved my life more than once.

            1. Still, there are better places to get a drink of water, buddy.

                1. Technically speaking, the water coming out of a bidet hasn’t touch butt or poop, and so should be clean. Technically.

          3. As a wise man once said about regularity

              1. It wasn’t all bad for him! I mean, check out these pictures!

                1. Its just like my own bedroom, only i wear slippers and smoke a pipe

    5. Is there a libertarian position on this?

      Because the commentariat is pretty fiercely divided on the issue.

      Some say whatever a property owner wants.

      Some say it should be based on the genitalia you’ve got.

      Some say that a person’s identity (no matter how ridiculous it is to you) should be respected.

      Some take a position that attempts to incorporate current ‘public accommodation’ and anti-discrimination law.

      It looks, to me, like this is not an issue that has anything close to even a compromise position that all libertarians can (even if grudgingly) agree on.

      1. How about “we’re talking about one percent of the population, and my copy of the Constitution doesn’t mention this as a proper concern of the federal government”?

      2. Like all things libertarian, there is a distinction between what government power should do, what people should be alowed to do and what is the right thing to do.

        This case is all the muddier because the entire issue is an edge case.

        Allowing transgender women to use the ladies room seems perfectly fine, even obviously OK. But we also would prosecute a man who walked into the ladies room and took a pee. It would be a serious crime too….. he’d end up on the sex offender registry for life.

        Adjudicating that sort of conflict in the law raises all sorts of questions. That is why this is a mess to discuss. Because when you take normal human interactions and distill them down to a written law, things get messy very fast.

  13. My birthday was yesterday. I turned 47. I thought I already was 47, and turning 48. I did the math, and discovered I was a year younger than I thought! So I get to be 47 for another year. Maybe next year I’ll turn 46; that would be cool.

    1. Congratulations! its like finding money in the pockets of your pants when doing the laundry. I call that “beer money”

      1. That’s funny; I call all my money “beer money’, except the part that is earmarked for whiskey.

        1. i meant more as an analogy to a rediscovered year of your life

          Something doesn’t have to be money to be Beer Money. Its like in Swingers? How vince vaughn always calls things “Money“? Beer Money is just, “hey something unexpected which i can now dispose with however i choose”. Its a mulligan. Use however you see fit.

          1. So, you’re saying that I should buy some really good marijuana?

            1. Happy birthday denverJ!

              1. Thanks, slammer

    2. Same thing happened to me last month – thought I was 46.

      1. It’s cool, huh? Happy birthday.

        1. Thank you – and happy birthday to you also.

      2. happy birthday to the birthday boys

        1. Thanks, buddy.

  14. Okay, so here’s what we know.

    There’s gender, which is assigned, often incorrectly, at birth, by medical professionals. It can be almost anything as there are an infinite number of genders one can possess, not has anything to do with societal stereotypes and all must be praised at all times by all people to insure that transphobia is a constant oppression that can be utilized endlessly*

    Then there’s sexual orientation which is fixed at conception and may never, ever, ever, be tampered with in any way. And it is always completely normal*

    Then there’s biological sex which is fixed at conception that only exists in the brain, This can be altered as one sees fit because it can misalign–but it is absolutely fixed.**

    *unless a Muslim takes offence
    ** unless it’s not

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