Supreme Court: School Can Keep Biological Female Out of Male Restrooms—For Now

Terence P. Jeffrey | August 4, 2016 | 10:57am EDT
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Justice Stephen Breyer speaking at the Brookings Institution in Washington, D.C., on Jan. 21, 2016. (AP Photo/Manuel Balce Ceneta)

( - The U.S. Supreme Court has determined that the Gloucester County, Va., school board may prevent a biological female from using the boys’ restroom—at least for now.

The court was responding to a request from the Gloucester County School Board to stay an order issued on June 23 by U.S. District Judge Robert Doumar. That order said the board must allow G.G.—a 17-year-old biological female who says she identifies as a male—to use male restrooms (but not male locker rooms) while the court reviewed G.G.’s case on the merits.

Judge Doumar had previously dismissed G.G.’s claim that the Gloucester County School Board had discriminated against her under the terms of Title IX of federal education law, which says schools that receive federal funding may not discriminate on the basis of “sex.”

However, in April, the U.S. Court of Appeals for the 4th Circuit decided that the district court should hear G.G.’s case again, reconsider allowing her to use male bathrooms at school while doing so, and give deference in the case to the Department of Education’s current interpretation of what the word “sex” means in Title IX.

The appeals court said:

“At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. Title IX provides: ‘[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’ 20 U.S.C. § 1681(a). The Department of Education’s (the Department) regulations implementing Title IX permit the provision of ‘separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.’ 34 C.F.R. § 106.33. In an opinion letter dated January 7, 2015, the Department’s Office for Civil Rights (OCR) interpreted how this regulation should apply to transgender individuals: ‘When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.’”

In a one-page ruling published yesterday, the Supreme Court stayed the order issued by Judge Doumar in June telling the Gloucester County School Board to let G.G. use the boys’ restrooms---but only while the Supreme Court itself considers whether to take up an appeal of the case from the Gloucester County School Board.

The Supreme Court decision to temporarily lift Judge Doumar’s order won on a 5-3 vote, with Justice Stephen Breyer joining Chief Justice John Roberts, and Justices Clarence Thomas, Anthony Kennedy, and Samuel Alito. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kegan did not support the court’s order.

Breyer said he did so as a “courtesy,” publishing this explaination in his concurrence to the court ruling:

“In light of the facts that four Justices have voted to grant the application referred to the Court by the Chief Justice, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy.”

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