Supreme Court blocks transgender bathroom ruling: Everything you need to know

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The US Supreme Court has temporarily blocked a ruling by a lower court that would allow a transgender Virginia teenager to use the school bathroom befitting his gender identity.

Wednesday’s order, which comes amid growing controversy over constraints on the use of school and public bathrooms by transgender people, means 17-year-old Gavin Grimm will be blocked from using the boys’ bathroom when he returns for the new school year. Grimm was born female but identifies as male and has undergone hormone therapy.

School officials had allowed him to use the boys’ bathroom until some pupils and parents complained, after which he was told to use only the girls’ bathroom or a unisex bathroom.

Grimm sued the school board in Gloucester County, Virginia, and in April a federal court ruled in his favour, saying that if the school board stopped him using his preferred bathroom, it would be in violation of Title IX, a 1972 law banning sex discrimination in federally funded schools.

Lawyers for the school board intend to appeal the decision, claiming they want to “protect the basic expectations of bodily privacy of Gloucester County students.”

The Supreme Court this week agreed to block the order by the Fourth Circuit Court of Appeals while the board prepares to make its appeal, which it hopes the Supreme Court itself will consider when the Justices return from the Summer recess.

How did the bathroom issue get so fraught?

Last year, the Obama administration issued advice to school districts nationwide, formalising its opinion that Title IX – that 1972 sex discrimination law – was applicable to the rights of transgender people. In a letter, a lawyer from the US Department of Education said transgender students should be permitted to use the bathrooms and changing rooms that are “consistent with their gender identity.”

The appeals court in the Grimm case agreed with the Department of Education’s assessment. The Gloucester County school board did not. Its lawyers said: “Depriving parents of any say over whether their children should be exposed to members of the opposite biological sex, possibly in a state of full or complete undress in intimate settings, deprives them of their right to direct the education and upbringing of their children.”

This isn’t just about one case in rural Virginia though, is it?

No. The issue of transgender people and bathrooms has stirred controversy in more than 20 states, with Republican politicians trying to force transgender students to use the bathroom that coincides with the gender on their birth certificates, and transgender activists and their allies arguing for their right to choose.

In May of this year, the Department of Education followed up last year’s guidance with a directive threatening to withhold federal cash from schools that continued to discriminate against their transgender pupils.

Eleven states quickly sued over that directive, and last month they were joined by 10 more. Last week a group of more than 100 pastors wrote to Ohio’s school districts, urging them to ignore the Obama administration’s mandate.

Meanwhile, in North Carolina, a federal judge is considering whether to block the state’s controversial HB2 law, adopted in March, which says all school and public bathrooms and changing facilities must be segregated according to the gender “stated on a person’s birth certificate”.

Similar bills have been brought in several other states, but North Carolina’s Pat McRory is the only governor to have actually signed one into law.

Is this an election issue?

With even the economy and global terrorism being overshadowed by Donald Trump’s hourly offences on the campaign trail, the matter of transgender people and bathrooms is unlikely to get much play as a presidential election issue. Hillary Clinton takes the same view as the Obama administration; the day after Mr McRory signed North Carolina’s bathroom bill, she tweeted: “LGBT people should be protected from discrimination under the law – period.”

Mr Trump’s position is less clear. After initially saying the North Carolina law had “a lot of problems” and that transgender celebrity Caitlyn Jenner could use whichever bathroom she preferred if she ever visited Trump Tower, the Republican nominee later walked back those remarks, saying the bathroom issue ought to be decided by individual states. His running mate, Indiana Governor Mike Pence, faced his own backlash in 2015 after signing a “religious freedom” law seen as allowing discrimination against the LGBT community.

But even if it doesn’t appear to impact the national race, transgender rights are a crucial issue in North Carolina, which is looking more and more like a swing state.

The Tar Heel state has voted Republican in eight of the last nine presidential elections, but polls currently put Ms Clinton and Mr Trump neck and neck there. Mr McRory himself is facing a tough re-election fight, especially after HB2 turned the state into something of a pariah, with high-profile musicians cancelling North Carolina shows, and several major companies cancelling plans for expansion there.

In a battleground state, small issues can have a big impact, and the Clinton campaign knows it. On Wednesday, Ms Clinton’s running mate Tim Kaine was in North Carolina, where he called on voters to go “forward, not backward” on LGBT issues. Lamenting the passage of HB2, he said: “You all have stood up in a major way and you’ve said this is not who we are. This is not who North Carolina is. These are not our values. And that’s one of the reasons why North Carolina is so intensely focused on this race.”

Where does the Supreme Court stand on transgender rights?

If it decides to consider Gavin Grimm’s case in the autumn, it will be the first time the Supreme Court has intervened in the issue. Its order this week blocking the appeals court ruling was seen as a blow to the transgender rights movement, but it may be more of a formality.

Since the death of Justice Antonin Scalia in February, the eight-person court has been split evenly between liberal and conservative justices, with Senate Republicans refusing to entertain the idea of confirming President Obama’s nominee, Merrick Garland, to fill the vacancy.

Wednesday’s order was a 5-3 decision because liberal Justice Stephen Breyer joined the court’s four conservatives as a “courtesy” to keep the issue on hold until they return from recess.

Justice Breyer implied, however, that he did not support the school board’s appeal. If the Supreme Court were to take the case and come to a 4-4 tie, the Fourth Circuit’s ruling would stand.