In the Supreme Court’s first involvement in legal battles over trans people’s bathroom access, the judicial entity has granted a stay to a Virginia school that wishes to keep a 17-year-old trans boy out of the facilities that are consistent with his gender, meaning that they are allowed to continue to do so for now. Initially the school’s policy had been struck down by a Virginia appeals court, but the Supreme Court has voted 5-3 to temporarily stay that decision until they can issue a fuller ruling.
The most immediate effects of the stay are, of course, a major blow to Gavin Grimm, the student who was hoping to have a safer and more affirming educational environment as a result of this case (although the ACLU is asking a Virginia district judge to block the school from enforcing their policy). Joshua Block, senior ACLU staff attorney, said “We are disappointed that the court has issued a stay and that Gavin will have to begin another school year isolated from his peers and stigmatized by the Gloucester County school board just because he’s a boy who is transgender.” For the rest of the nation, the stay leaves much in limbo; we still have to wait to see whether the court decides to hear the case, and if so, what their real ruling is.
The particular makeup of the current body of Supreme Court justices means that there are a few unusual factors at play in this ruling. First, the fact that the late Antonin Scalia hasn’t been replaced means that a split 4-4 ruling is possible, and given the past leanings of the justices on the bench, maybe even likely. The dissenting 3 votes regarding the stay were Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg; not surprising. The vote that swayed the issue was Stephen Breyer, who said in a one-paragraph opinion that he actually disagreed with the stay, but voted as a “courtesy” to his conservative colleague. This is a weird move! It’s not unheard of to vote as a courtesy, but it’s most often seen in cases regarding the death penalty — as ThinkProgress explains, “when four justices wish to hear a case but a fifth vote is necessary to stay the execution — lest the inmate be executed before their case receives full review.” In this case, there’s seemingly no benefit or value conferred to the deliberation by issuing the stay out of courtesy, so it’s not clear why Breyer did so.
Also notable is the fact that Justice Kennedy voted for the stay, and without the caveat of it being a courtesy vote. Kennedy has traditionally been a conservative justice, but has demonstrated that he’ll occasionally break rank for “socially liberal” issues, like LGBT rights. His vote for the stay may be an indicator that he’s not going to do this when it comes to the pressing legal issue of bathroom bills. As you may recall, 11 states have sued the Obama administration over the Department of Justice’s guidelines asserting that trans students should be able to use facilities and accommodations consistent with their gender. That case may also head to the Supreme Court, meaning that there could be multiple opportunities for the Supreme Court to greatly bolster or harm the rights of trans people in the US this year.
Given the stakes for thousands of people in the US — and pressingly, right now, Gavin Grimm — what happens if the court does decide to hear the case, and it ends up as a 4-4 split vote? Most immediately, it means that the outcome would revert to the lower court’s ruling — in this case, it would mean that the Virginia appeals court’s decision that Gavin should be able to use the boys’ bathroom and locker rooms would be upheld. But the case wouldn’t have any legal precedent, as Slate explains: “When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent. Tradition holds that the court’s per curiam opinion in such ties is usually very, very terse, often consisting of no more than a single sentence: “The judgment is affirmed by an equally divided court.” So, if the SCOTUS hears the case and votes in favor of Grimm, then Gavin Grimm will be able to use the correct bathroom and other cases all over the country will be strengthened enormously by that legal precedent. However, if the vote is split, Gavin Grimm can use the correct bathroom, but the larger legal issue is still in limbo on a national level.
This is only the most recent time that a case with major implications for a highly marginalized and vulnerable group of people has gone before a Supreme Court that’s missing a justice — in June, SCOTUS issued rulings on Fisher vs. University of Texas, Dollar General, and DACA/DAPA, and the latter two cases saw split rulings that will have major repercussions. In Dollar General, the sovereignty of the tribal courts of the Mississippi Band of Choctaw Indians was upheld, but because of the split vote, unfortunately no legal precedent was set; in the split vote on DAPA/DACA, millions were left vulnerable to deportation. This summer has served to urgently highlight the enormous sway that SCOTUS justices hold over the nation (and the power that a President wields via nominating them), something which only heightens the stakes of an already unprecedented Presidential race. In the meantime, Gavin Grimm’s rights, and those of many other transgender Americans, hang in the balance.