Signaling that the Supreme Court may be willing to take up the first significant test case on transgender rights, the Justices split 5-to-3 on Wednesday in blocking a lower court ruling on access of students to high school restrooms. The Court’s order is here.
The order puts on hold, for the time being, a ruling by the U.S. Court of Appeals for the Fourth Circuit that federal law gives a transgender boy a right to use the boys’ restrooms at his high school in Gloucester County, Va. The order also postponed a federal trial judge’s order implementing the appeals court decision. The case is Gloucester County School Board v. G.G. (docket 16A52).
The boy, identified only as “G.G.”, is a 16-year-old who will enter his senior year when school opens on September 6. Assigned a girl’s gender at birth, G.G. now identifies as a boy and wants access to the boys’ restroom. He, along with his mother, won that right in lower courts.
Although this case focuses just on one student at one school, it does involve the situation that has dominated recent controversy over the rights of transgender people: that is, their claim to equal access to restroom facilities that match their gender identity. The G.G. case thus has been watched closely by those involving on both sides of the transgender rights dispute.
One of the key factors that the Supreme Court considers when asked to postpone a lower court ruling is whether the case is likely to be granted review when a full appeal follows later. There were four clear votes in favor of delay in this case, and that would be enough to grant review when the appeal is taken up.
It actually took five votes to act on the postponement, and Justice Stephen G. Breyer, noting that there were four colleagues in favor of delay, said he was adding a fifth vote “as a courtesy.” He noted that the Court was in its summer recess, perhaps limiting the opportunity to fully discuss the issue, and that, in any event, the order approved Wednesday would keep the status quo intact for the time being.
The status quo is that the school board has a policy that would deny G.G. access to the boys’ restroom, but would allow him to use one of the single-stall toilets the school has installed, or use the restroom in the school nurse’s office. When G.G. had access to the boys’ restroom earlier, some parents and students protested, leading the school board to adopt its policy.
The four members of the Court who favored the delay were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Three Justices — Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — noted that they would have turned down the school board’s plea. Justice Breyer was the only one to write a brief explanation of his vote.
The school board plans to file its appeal seeking the Justices’ review by August 29, its lawyers have told the Court. Unless the Justices put the case on an unusually expedited schedule, they would not even take a vote on whether to review it until some time — perhaps weeks — after school has opened at Gloucester High School.
The order specified that it would keep the lower courts’ actions suspended until the Justices have decided whether to hear the school board’s appeal. Under normal filing schedules, the case probably would not be ready for the Justices even to take their first look until November, at the earliest.
The Justices are scheduled to have their first private conference of their new Term on September 26, but the case definitely would not be ready for that case, unless put on a schedule much shorter than usual.