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Split Supreme Court grants emergency block in Va. transgender restroom case

David G. Savage

WASHINGTON — The Supreme Court intervened for the first time Wednesday in the controversy over transgender rights and blocked a lower court ruling that would have allowed a transgender boy to use the high school restroom that fits his “gender identity.”

This Tuesday Aug. 25, 2015 photo shows Gavin Grimm speaks during an interview at his home in Gloucester, Va.  Grimm is a transgender student whose demand to use the boys' restrooms has divided the community and prompted a lawsuit. (AP Photo/Steve Helber)

In an unusual 5-3 order, the justices granted an emergency appeal from a Virginia school board that said it is fighting to “protect the basic expectations of bodily privacy of Gloucester County students.”

Justice Stephen G. Breyer said he joined the court’s four conservatives to put the issue on hold until the justices can review the matter during the fall. “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 on recess and that granting the stay will preserve the status quo,” he wrote, “I voted to grant the application as a courtesy.”

The court’s action, while not a ruling, signals at least four justices are skeptical of the Obama administration’s civil rights policy.

Last year, an Education Department lawyer advised school districts that Title IX, the law which forbids sex discrimination in education, protects the rights of transgender students to use restrooms and changing facilities that are “consistent with their gender identity.”

In April, the 4th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld that policy and ruled for Gavin Grimm, the 17-year old transgender boy who sued over the issue. The Gloucester School Board had adopted a rule that barred him from using the boy’s restroom. In its appeal to the Supreme Court, the school board said it had installed several uni-sex facilities in the high school in response to the dispute.

It takes only four votes to grant a petition to review a lower court ruling, but five votes to rule on the issue.