Leaving some to wonder if this is a foreshadowing of its future decisions on the issue, the Supreme Court yesterday granted a stay of the 4th Circuit Court of Appeals ruling overturning the Gloucester County, Virginia, School District policy that requires all students to use the restroom that is consistent with their assigned gender at birth.
For those readers who may be unfamiliar with the case, as a result of dissent in the school district over a transgender student’s use of the restroom consistent with his gender identity and not his assigned gender at birth, the school district issued a rule requiring all students to use the bathroom that correlated with their gender at birth. The parents of the student in question sued the school district for violation of Title IX. The district court ruled in favor of the school district but the court of appeals overturned the lower court, finding that the bathroom policy violated the student’s rights.
The school district, which has stated its intent to appeal the recent decision to the Supreme Court, sought a stay from the Court as the new school year approaches. This required action from the Court during its summer recess, which rarely occurs. Additionally, with late Justice Scalia’s position still vacant, many believed that at best the Court would be split on the request.
So, it was a surprise to many when the Supreme Court granted the stay yesterday with a 5-3 split. While some believe it serves as a glimpse into the Court’s view on the larger issue, such may not be the case. Justice Stephen Breyer cast his vote with the conservative members of the court citing the move as a courtesy. “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,” Breyer wrote.
It is unusual for a justice to specifically identify his or her vote as a courtesy vote, leading some to believe that Justice Breyer was indicating that, at the very least, he remains undecided on the merits.
In the meantime, many states including Illinois have legislation prohibiting discrimination based on gender identity. The EEOC also remains staunch in its position that gender identity discrimination is a form of gender discrimination, prohibited by Title VII.
