Supreme Court Will Hear Transgender Bathroom Case

By Ian Millhiser, ThinkProgress

29 October 16

In the short term, this is terrible news for trans rights.

n a not entirely unexpected but still unfortunate development for the rights of transgender Americans, the Supreme Court announced on Friday that it will hear Gloucester County School Board v. G.G., a case involving the right of transgender students to use the bathroom that corresponds with their gender identity.

Last June a federal appeals court held that a Virginia school district must permit Gavin Grimm, the student at the center of this case, to use the men’s room at his high school. The appeals court deferred to the Obama administration’s interpretation of regulations governing sex-segregated bathrooms. In G.G., the Supreme Court will take up two issues: whether such deference was appropriate under the specific circumstances of this case, and whether the administration’s interpretation was correct.

Though this case has obvious significance, it is likely that it will go undecided by the Supreme Court if no one is confirmed to fill the vacancy left by Justice Antonin Scalia’s death. In August, the Supreme Court voted 5–3 to stay the appeals court’s decision pending the Court’s final action on the case. Notably, however, Justice Stephen Breyer published a concurring opinion suggesting that he agreed with the lower court’s resolution of the case, and only voted to grant the stay as a “courtesy” to his conservative colleagues. Thus, it is likely the the Court’s current members will split 4–4.

Although it requires 5 votes to grant such a stay, it only takes 4 votes for the Court to hear a case.

In any event, Breyer’s “courtesy” could have very severe consequences for Grimm. Because the stay remains in effect until the Supreme Court disposes of the case, Grimm cannot benefit from the appeals court’s decision?—?and thus is locked out of the appropriate bathroom?—?so long as this case is pending. Indeed, the Court is likely to delay resolution of this case, as it does with many contentious cases, until the end of June?—?after Grimm will already graduate from high school.