In yet another development in the saga of transgender law in America’s public schools, the United States Supreme Court put a halt to a trial court order that would have allowed a transgender male student to use the boy’s restroom in a high school in Gloucester County, Virginia at the start of the upcoming school year. The Supreme Court blocked the trial court’s order in a 5-3 decision, which will preserve the status quo at the high school until the Gloucester County School Board seeks the Supreme Court’s review of the lower court’s order later in August. While the high court’s decision is a significant step in the transgender student’s case, it does not have legal effect on any other cases.
By way of history, this ruling resulted from the school board’s request that the Supreme Court stay the Virginia trial court’s order permitting the female-to-male transgender student to use the restroom of his choice. The trial court’s order came after the Fourth Circuit United States Court of Appeals held that the school district’s policy – which requires students to use the restroom that comports with their biological sex – ran afoul of a federal Department of Education directive providing that public schools could lose federal funding if they discriminate against transgender students. The Fourth Circuit’s ruling and the Virginia trial court’s order implicate the scope and application of Title IX of the Education Amendments of 1972, which prohibits discrimination in public schools on the basis of sex. At the heart of this dispute is whether Title IX also extends to gender identity discrimination.
In addition to the complicated legal questions involved in this case, the school, the student, and the community all face challenging issues – from the personal stigma of discrimination to the rights of parents to direct and control the public education of their children. Districts, therefore, should be extremely circumspect when transgender questions arise in the halls and classrooms of their schools. Indeed, a deliberate and cautious approach to transgender questions is all the more necessary, as this new area of law continues to play out and develop and in our public schools and courts.