A Virginia school board may temporarily block a student who was born a girl from using the boys’ bathroom while a legal fight over transgender rights proceeds on appeal, the U.S. Supreme Court said on Wednesday.
The case is the first time the fight over transgender bathroom rights has reached the Supreme Court, and the subject arrived in the heat of a U.S. presidential election in which the makeup of the court is a central issue.
In a brief order, the country’s highest court put on hold an order from a lower court that had permitted the high school student to use the bathroom of his choice.
Last year, the American Civil Liberties Union sued on behalf of Gavin Grimm, 17, to challenge the Gloucester County School Board’s bathroom policy, which requires transgender students to use alternative restroom facilities.
A lawyer for the school board declined to comment on the Supreme Court’s order.
A lawyer for Grimm, Joshua Block, said he and his client were disappointed by the order and “disappointed that Gavin is going to have to begin another school year being stigmatized and separated from his peers as a result of this policy.”
The eight-member Supreme Court voted 5-3 to stay the lower court’s order. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would have denied the school board’s request that it be able to block a student from exercising choice in use of a bathroom, according to the order.
The order was not a final ruling on the subject. Instead, it rewound the fight to where it was in April before a federal appeals court in Richmond, Virginia, ruled in Grimm’s favor.
That ruling by the 4th U.S. Circuit Court of Appeals was the first by an appeals court to find that transgender students are protected under federal laws that bar sex-based discrimination.
In court papers last month, the school board’s lawyers said the 4th Circuit wrongly deferred to the view of President Barack Obama’s administration that prohibitions on sex discrimination under federal law also apply to gender identity.
In May, the Obama administration directed public schools nationwide to allow transgender students to use bathrooms that correspond to their gender identity or risk losing federal funding. So far, 23 states have sued to block the directive.
Justice Stephen Breyer, of the Supreme Court’s liberal wing, joined with its most conservative members in temporarily siding with the school board.
Breyer wrote in a one-sentence explanation that he did so as a courtesy to preserve the status quo until the Supreme Court has a chance to consider the subject more fully.