On Aug. 3, the Court issued a stay in the high-profile case from Gloucester County, Va. The stay puts a hold on a 4th Circuit Court of Appeals order that would have let the student use whichever bathroom he chose. The stay halts any changes while the legal fight proceeds on appeal.
The Court, which currently has just eight members, voted 5-3 to stay the lower court's order. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan voted to deny the school board's request to block a student from exercising choice in use of a bathroom.
The Gloucester County school board challenged a decision by a federal appeals court that ruled it must allow the transgender student to use the boys' bathroom during the coming school year. While the board prepares to appeal the decision, it asked the Supreme Court to block the lower court order. The Aug. 3 stay granted that request.
West Virginia Attorney General Patrick Morrisey released a statement after the stay was issued. Morrisey has been a critic of the federal government directive allowing the choice to transgendered people.
“We applaud the Supreme Court for staying the Fourth Circuit’s erroneous decision until it has had an opportunity to consider whether to review the case,” Morrisey said in his statement. “As always, I am committed to defending West Virginia schools from federal overreach. That is why we opposed the federal government below and will continue to support the efforts to persuade the Supreme Court to overturn the Fourth Circuit.
"This decision, combined with separate arguments by our coalition of 11 states, underscore why West Virginia schools should stay the course and not make hasty decisions until all legal challenges are concluded.”
Attorneys for the Gloucester County school board say the 4th Circuit wrongly deferred to the view of President Barack Obama's administration that prohibitions on sex discrimination under federal law also apply to gender identity.
In May, the Obama administration directed public schools nationwide to allow transgender students to use bathrooms that correspond to their gender identity or risk losing federal funding. So far, 23 states – including West Virginia – have sued to block the directive.
