Diversity & Inclusion

U.S. Supreme Court puts transgender bathroom case on hold

by Rachael L. Loughlin

The case of the Gloucester County, Virginia, transgender high-school student fighting to use the restroom that matches his gender identity has been making its way through the federal court system for more than a year. Recently, the U.S. Supreme Court weighed in on the matter, adding yet another twist to the high-profile case.  Transgender Sign

A recap of the lawsuit

Both the U.S. Court of Appeals for the 4th Circuit (whose rulings apply to all Maryland, North Carolina, South Carolina, Virginia, and West Virginia employers) and the U.S. District Court for the Eastern District of Virginia in Norfolk ordered the Gloucester County School Board to permit the student, Gavin Grimm, to use the bathroom matching his gender identity when school begins in September. The school board has argued that following the court order would “likely cause severe disruption,” distract from the school’s ability to educate students, and open the school board to litigation from other students’ parents.

As a result, the school board asked the district court to stay, or suspend, its order pending the board’s filing of an appeal with the Supreme Court. However, the district court denied the school board’s request. The board then appealed that ruling to the 4th Circuit.

The 4th Circuit voted 2-1 to deny the school board’s request for a stay of the order permitting Grimm to use the restroom of his choice. The majority said there was no reason to “disturb the district court’s exercise of discretion in denying the stay,” while the dissent argued that Grimm is unlikely to suffer substantial harm if suspension of the order was granted.

Supreme Court’s decision  

Undeterred, the school board sought relief from the Supreme Court by filing yet another motion to stay. In a 5-3 ruling issued on August 3, 2016, the Court stayed the district court’s order pending the school board’s formal appeal to the Court. The majority was composed of Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Anthony Kennedy, and Stephen Breyer. Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg voted to deny the school board’s request.

As a result of the Supreme Court’s ruling, when classes start in September, Grimm will be required to use either the bathroom that matches his physical gender or one of the school’s private unisex bathrooms. The school board intends to file a formal petition for appeal with the Supreme Court in August. If the petition is granted, the appeal would not be heard until sometime in 2017. Although Grimm’s attorneys with the American Civil Liberties Union said they were disappointed with the turn of events, they remain optimistic about the case’s ultimate outcome.

Future developments

What the outcome of the case will be remains unclear. The fact that five Supreme Court justices voted to stay the district court’s order does not necessarily mean that a majority of the Court will vote in favor of the school board’s position or even consider its appeal. Justice Breyer, who is considered a liberal justice, said he voted in favor of the stay as a matter of “courtesy” in order to give the school board time to file its appeal. Once the school board’s appeal is filed, he and Justice Kennedy, who is known as a moderate justice, may well take a different position as to whether the case is worthy of consideration.

One thing is clear, however: Transgender individuals’ rights will remain at the forefront of civil rights law. This is an issue employers cannot ignore in dealing with today’s diverse workforce.

Rachael L. Loughlin is an attorney with DiMuroGinsberg, PC in Alexandria, Virginia. She may be contacted at rloughlin@dimuro.com.