The legal fight over whether transgender people can use public bathrooms that reflect their gender identity is set to reach the U.S. Supreme Court for the first time on Wednesday in a case involving a Virginia high school student who was born a girl but now identifies as male.
The Gloucester County School Board has lost its fight in lower courts to prevent Gavin Grimm, 17, from using the boys’ bathroom while litigation continues.
The board is expected to file an emergency application with the Supreme Court on Wednesday seeking to block a lower court’s injunction requiring it to allow Grimm to use the boys’ bathroom, according to Kyle Duncan, one of the school board’s lawyers.
The move comes after a federal appeals court on Tuesday refused to put the injunction on hold.
The school board is expected to ask Chief Justice John Roberts, who has responsibility for emergency actions that arise from the regional federal appeals court that covers Virginia, to grant a stay of the injunction. Roberts could act alone or refer the matter to all eight justices. Five votes are need to grant a stay application.
The American Civil Liberties Union had sued on behalf of Grimm to challenge the school board’s bathroom policy, which requires transgender students to use alternative restroom facilities.
The April ruling by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals in favor of Grimm was the first by an appeals court to find that transgender students are protected under federal laws that bar sex-based discrimination.
Transgender rights have become an increasing divisive issue in the United States, and the issue of the use of public bathrooms has been a key part of the controversy. Some conservative states sought to require people to use bathrooms that reflect their gender at birth.
The Obama administration issued a directive in May telling public schools to allow transgender students to use bathrooms that correspond to their gender identity or risk losing federal funding. So far, 23 states have sued to block the directive.
Separately, the Justice Department sued North Carolina in May over a state law requiring people to use public bathrooms that correspond to the sex on their birth certificates.
The Obama administration’s May letter said transgender people are protected by prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964, which applies to employment, and Title IX of the Education Amendments of 1972, which applies to federally funded schools.
(Reporting by Lawrence Hurley; Additional reporting by Daniel Wiessner; Editing by Will Dunham)