Three days after attorneys for a seventeen-year-old transgender student urged the Supreme Court to stay out of the student’s dispute with a Virginia school board, the school board today filed its reply. It once again urged the Court to block a federal district court’s order that would require schools in Gloucester County, Virginia, to allow “G.G.” – who was assigned the identity of a girl at birth but now identifies as a boy – to use the boys’ restrooms until the case can be litigated on the merits. (More details on the case are available in my earlier coverage of the board’s first filing and the student’s response.)
The board sharply dismissed G.G.’s assertion that allowing the district court’s order to stay in place will not create any lasting harms – a key factor in the Court’s decision whether to halt a lower court’s ruling. Instead, the board retorted in today’s filing, the harms are “obvious” to “anyone familiar with public schools in the real world.” Among other things, the board argued, the order not only takes away the power of Gloucester County residents, through their elected officials, “to establish a policy on one of the most sensitive matters imaginable – who may access single-sex bathrooms” – but it also deprives male students of their privacy.
At the same time, the board downplays the harms outlined by G.G. in opposing a freeze of the district court’s order, averring that they are “not the result of the board’s policy.” “Any anatomical female wishing or attempting to live as a teenage boy,” the board contends, “is bound to face a variety of psychological challenges.” And G.G.’s description of repeated urinary tract infections, the board suggests, cannot be attributed to the policy because G.G. has access to several single-user restrooms, but simply opts not to use them.
The fact that the district court’s order requiring the board to allow G.G. to use the boys’ bathroom is only temporary, rather than final, is – in the board’s view – unpersuasive. Although that too is often a factor weighing against the Court stepping in, the board asserts that in this case “there is no doubt about the ultimate outcome in the district court.” Similarly, it argues, G.G. cannot rely on the Court’s denial of review in another, supposedly analogous case to forestall action now. Unlike this case, the board contends, the earlier case did not clearly present the question at the heart of this dispute: whether courts should accede to an agency’s interpretation of its own regulation, a doctrine known as “Auer deference.”
The school board’s request to halt the district court’s order goes to Chief Justice John Roberts, the Justice responsible for emergency appeals for the geographic region that includes Virginia. Roberts can rule on the application himself or refer it to the full Court; there is no deadline for Roberts or the Court to act on the board’s request.