The Supreme Court on Wednesday temporarily blocked a court order that had allowed a transgender boy to use the boys’ bathroom in a Virginia high school.
The vote was 5 to 3, with Justice Stephen G. Breyer joining the court’s more conservative members “as a courtesy.” He said that this would preserve the status quo until the court decided whether to hear the case. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented.
The court’s order has no effect on any other case.
[…]
The case in the Supreme Court concerns Gavin Grimm, who was born female but identifies as a male and will soon start his senior year at Gloucester High School in southeastern Virginia. For a time, school administrators allowed Mr. Grimm to use the boys’ bathroom, but the local school board adopted a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.” The board added that “students with gender identity issues” would be allowed to use private bathrooms.
Mr. Grimm sued, and a divided panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled the policy unlawful. A trial judge then ordered school officials to let Mr. Grimm use the boys’ bathroom.
The school board has said that it will file a petition in late August asking the Supreme Court to hear its appeal. In the meantime, the board submitted an emergency application that asked the justices to let school officials continue to bar Mr. Grimm from the boys’ bathroom.
See here for some background. Think Progress analyzes what this means.
Breyer, in other words, believed that this stay should be denied. Yet he provided the key vote to grant it, nonetheless, as a “courtesy” to his conservative colleagues. Such courtesy votes are an ordinary practice in death penalty cases, when four justices wish to hear a case but a fifth vote is necessary to stay the execution — lest the inmate be executed before their case receives full review. But Justice Breyer’s decision to grant such a “courtesy” in a case such as this one is more unusual.
Unlike in death penalty cases, no one will die and the case will not become moot simply because a trans student is granted a measure of civil rights.
In any event, Breyer’s decision to grant the stay allows the school district to continue its policy at least until the Supreme Court returns to work at the end of September. The content of his concurring opinion, however, suggests that Breyer will ultimately join the Court’s three women in affirming the Fourth Circuit’s decision, should the Court decide to hear this case.
Beyond the temporary implications of Breyer’s vote, however, there are also two reasons why liberals should be concerned about the order in this case. The first is that Breyer’s willingness to grant a courtesy stay in this case hints that he may be willing to do so in others, most notably in voting rights cases where supporters of the right to vote are counting on the fact that conservatives no longer enjoy a majority on the Supreme Court to protect lower court decisions halting voter suppression laws.
Additionally, it is worth noting that Justice Anthony Kennedy, a conservative who typically favors gay rights, joined his fellow conservatives in voting against this trans student. That suggests that Kennedy’s sympathy for victims of anti-gay discrimination does not extend to victims of anti-trans discrimination.
In this case, the Court is in recess, and the school board’s petition for review is not due until August 29. If they then decline to take up the case, the lower court’s ruling is restored, and if they do take it up it will remain on hold until they rule on the merits. We’ll know soon enough. SCOTUSBlog and Daily Kos have more.
The appeals court made their ruling on the deference theory that arose in Chevron v NRDC, where the Supremes said courts should defer to the Executive Branch department that issues regulations required by laws. It’s pretty clear from the legislative history that Title IX was written based on biological sex, without consideration of gender identity. That’s not something the regulators can change. Congress can change the law if they desire, which I support, but we should not be allowing regulatory agencies to make these decisions on their own, even if the outcome is desirable.