Gavin Grimm, a transgender male high school student in Virginia, convinced the Fourth Circuit Court of Appeals that he must be allowed to use the men’s bathroom at school; however, the Supreme Court recently issued a stay, which is to say to Grimm, “Let’s wait a minute; is this really required by federal law?”
As schools attempt to navigate the varied, and often conflicting, views and authorities regarding transgender students’ use of bathrooms and locker rooms, one thing all sides can agree on is that clear guidance from SCOTUS would help schools know where they stand. That guidance may be coming next term. This is particularly true now that a federal district court in Texas has disagreed with the Fourth Circuit.
For several weeks in 2014, Gavin was allowed to use the boys’ restrooms at his school. After parents complained, the school board implemented a policy requiring students to use the bathroom associated with their biological gender or a single stall, unisex bathroom. Gavin then filed suit in federal court claiming discrimination, and the district court judge supported the school board’s decision. Gavin appealed.
In May, the Department of Education issued a Dear Colleague Letter instructing schools that they should allow transgender students to use the restrooms of the gender with which they identify. The Fourth Circuit Court decided in a 2-1 decision that the Dear Colleague Letter should be followed, and Gavin should be allowed to use the bathroom of the gender he identifies with.
When faced with the Fourth Circuit’s order, the school board filed an emergency application, asking the Court to stay the decision while it seeks a reversal from the Supreme Court. As is custom, the Chief Justice took the matter to his colleagues for a vote of the entire Court. In a 5-3 decision, SCOTUS said the school should maintain the “status quo” for now. The status quo means Gavin cannot use the bathroom corresponding to his gender identity. And the “for now” is indefinite, as the High Court has not officially taken up this case; indeed, the school district has not yet filed a petition to ask the Court for a review. But the Court’s willingness to dip its toe in the murky waters of the interim stay almost certainly indicates that it may take up the issue directly when asked.
The Department of Education’s Dear Colleague Letters, such as the one relied on by the Fourth Circuit, do not have the force of law. They do, however, provide guidance to schools and can be adopted into precedential court decisions. Some courts have recognized that schools feel little choice but choose to follow the “guidance” issued by the Department’s Office for Civil Rights.
As of now, 23 states have sued to block the Department’s guidance related to transgender student use of bathrooms. On August 21, 2016, a federal judge in the northern district of Texas issued an injunction that, among other things, bars enforcement of the Dear Colleague Letter, purportedly nationwide, finding that proper procedures were not followed in issuing the Letter.