The controversy over the rights of transgender students and bathroom access at their local schools has reached the Supreme Court.
The dispute arrived at the justices’ doorstep on Wednesday in the form of an emergency application by the Gloucester County School Board in Virginia, which was ordered by a federal judge to accommodate a trans high school student who was denied access to a bathroom that aligns with his gender identity.
The long-running fight of Gavin Grimm with Gloucester school authorities came to a head in April, when the U.S. Court of Appeals for the 4th Circuit sided with him and ruled that federal anti-discrimination law includes protections for trans individuals.
That ruling, which a judge enforced in late June, was a high-water mark for transgender rights because it gave “controlling weight” to the Obama administration’s interpretation of Title IX, the law that bars federally funded schools from discriminating against students on account of race, sex and other protected categories.
Congress didn’t originally write the “sex” provision in the law to cover gender identity, but a number of appeals courts and the federal government have determined that it’s also covered ― prompting the Department of Education to issue guidance for states and localities to make arrangements for trans students or else risk losing federal funding.
In turn, that same guidance has sparked a flurry of lawsuits by and against the federal government in North Carolina, Texas and Nebraska, each raising related legal issues.
Grimm’s school district mentions these recent developments in its petition to the Supreme Court to bolster its argument that the issue is of “nationwide importance” and thus merits intervention.
But the justices won’t be addressing the merits of these claims head-on. Instead, they’ll simply determine whether the school board should be given a temporary reprieve from accommodating Grimm while it pursues a formal appeal before the justices ― a process that could take months.
In court papers, lawyers for the Gloucester County School Board say the Grimm case represents “one of the most extreme examples of judicial deference to an administrative agency this Court will ever see,” and that it may lead to “irreparable harm to the Board, to the school system, and to the legitimate privacy expectations of the district’s schoolchildren and parents alike.”
The board’s central argument is that the Supreme Court should revisit a prior decision that gave federal agencies broad leeway to interpret their own regulations ― a mechanism the Obama administration is said to be exploiting in the trans bathroom battles across the country.
As applied in the Grimm case, this precedent allows the Department of Education to push its “Title IX interpretation on every school district in the Nation and, indeed, to extend that interpretation beyond restrooms to locker rooms, showers, single-sex classes, housing, and overnight accommodations,” the board’s lawyers wrote.
The American Civil Liberties Union, which represents Grimm, is expected to oppose Wednesday’s request by the Gloucester County School Board.
The request was addressed to Chief Justice John Roberts, who covers emergency applications from Virginia. He could act on the petition on his own or forward it to the full court for adjudication.
But even if the Supreme Court turns away Grimm’s school district at this early stage, the ACLU said, the order allowing Grimm to use a bathroom that comports with his gender identity wouldn’t pose a big burden.
“The only thing this injunction does is let Gavin use the boys’ restroom,” Joshua Block, Grimm’s attorney at the ACLU, told The Washington Post. “The notion that simply allowing one boy to use the restroom during his senior year of high school would cause the sky to fall is impossible to take seriously.”