The Gloucester County, Virginia school board has requested that the Supreme Court find that the US Department of Education does not have the authority to mandate that public schools must allow transgender pupils to use the bathroom that aligns with their gender identity.
The appeal is being made as school districts nationwide are wrestling with how transgender students can be accommodated amidst conflicting directions from courts, the federal government, and sometimes from state legislatures. Some lawmakers have passed legislation that requires people to use the public bathrooms that match the sex on their birth certificates.
Robert Barnes and Moriah Balingit, reporting for The Washington Post, say the Gloucester schools have been given a temporary stay in the case that delays a lower court's ruling that had already established that 17-year-old Gavin Grimm, a transgender male, should be allowed to use the boys' facilities when he begins his senior year this week.
In the rare Supreme Court order on August 3 that granted the stay, Justice Stephen G. Breyer said he was siding with the conservative justices as a "courtesy" so that the status quo would be preserved while the court continued to consider the school board's appeal. Further reflections by the justices will mean the decision could take months to be completed.
Grimm brought the suit against the board, explaining that, in his opinion, the policy that ordered pupils to use the restroom corresponding to their biological sex was discriminatory and violated his civil rights.
In April, the US Court of Appeals for the 4th Circuit agreed with Grimm and ruled that his case should move forward and that it complied with the Obama administration's opinion that Title IX, which bans sex-based discrimination in public schools, also protects transgender students' rights to use the bathroom that aligns with their gender identity.
But after the decision, a backlash ensued and a lawsuit was brought by several states arguing that the administration was going too far. A North Texas judge produced a temporary injunction this month to block the DoE's guidance.
The Gloucester petition points out that the department's position:
"â¦ presents an extreme example of judicial deference to an administrative agency's purported interpretation of its own regulation." It was developed by "a relatively low-level official in the Department of Education" without proper notice and comment, said the petition filed by the board's lawyer, Kyle Duncan.
Some parents believe that using restrooms that correspond to the students' sex as registered on their birth certificate is necessary to safeguard traditional values and to ensure privacy.
Grimm's attorney Joshua A. Block argued that forcing a transgender person to use separate bathrooms from the ones everyone else uses conflicts with that pupil's equal right to the resources and academic opportunities of school, reports Ariane de Vogue for CNN.
The temporary hold decision by the Supreme Court has caused other schools, such as the Charlotte-Mecklenburg School District in North Carolina, to reverse a school policy that was already in place that allowed transgender pupils to use the restroom of their gender identity.
"We see you," Attorney General Loretta Lynch told transgender individuals when she announced the lawsuit in May. "No matter how isolated or scared you may feel," she said, "the Department of Justice and the entire Obama administration wants you to know that we see you."