Student Urges SCOTUS to Stay out of Transgender Bathroom Case, for Now

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By Casey C. Sullivan, Esq. on July 27, 2016 3:59 PM

Gavin Grimm just wants to be able to use the bathroom in peace -- and, for a while, he could. When Grimm, a high school student in rural Virginia who was born female but identifies as male, first notified his school administrators that he was transgender, he was allowed to use the bathroom that aligned with his gender identity. But following an ugly public backlash, the Gloucester County School Board kicked him out of the boy's room, offering Grimm access to the women's bathroom or a modified broom closet, instead.

Grimm, backed by the ACLU, sued, arguing that the school had violated Title IX and the Equal Protection Clause. Last month, Grimm won a preliminary injunction against the school board, requiring his high school to allow him to use the boy's room while the litigation played out after the Fourth Circuit refused to stay a ruling in Grimm's favor. Now, the school board has taken its case to the Supreme Court, with Grimm, in a filing with the Supreme Court yesterday, urging the Court to stay out of the dispute for the time being.

Grimm's High School Bathroom Battle

Grimm, who's referred to as G.G. in court filings since he is a minor, first challenged the Gloucester County School Board's transgender bathroom policy last June. Since then, his case has bounced back and forth between district and appellate court. Amy Howe has an excellent review of the case's background on SCOTUSblog, but here's the cheat sheet version.

The district court initially rejected Grimm's Title IX claims on the grounds that regulations from 1975 allowed schools to provide separate bathroom facilities on the basis of sex. The Fourth Circuit rejected that reasoning, deferring to the Department of Education's most recent interpretation of Title IX, which holds that schools must allow transgender students to use the bathroom that reflects their gender identity. The Fourth reasoned that, under Auer v. Robbins, it should defer to the agency's interpretation of the statute it administers, where that statute is ambiguous on the question at hand.

The Fourth declined to stay its holding, leading to the district court's injunction against the school board. The Fourth Circuit again refused to stay the application of that injunction earlier this month, leading the school board to ask the Supreme Court to intervene, making Grimm's case the first transgender bathroom dispute to reach the Supreme Court.

Will the Supreme Court Step In?

In their petition to the Supreme Court, the school board argued that "sever disruption" would result if Grimm is allowed to use the boy's room. It condemned the Fourth's ruling in favor of Grimm as "one of the most extreme examples of judicial deference to an administrative agency this Court will ever see," and even floated the idea of the Supreme Court overturning the Auer doctrine.

In his response filed yesterday, Grimm argues for a different sort of deference. The Court should stay out of the dispute for the time being, Grimm argues, as the school board has not shown any "irreparable harm" that would stem from his bathroom use. If other students are uncomfortable sharing a bathroom with Grimm, his lawyers argue, those students can use the jerry-rigged broom closets Grimm would otherwise be exiled to. That inconvenience would certainly pale in comparison to the "daily psychological harm" that Grimm would suffer as a result of the school board's policy being allowed to continue, according to the filing.

Chief Justice Roberts could rule on the dispute in the near future, or pass it along to the full Court to decide whether to intervene.

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