Yesterday, the Supreme Court voted 5-3 to stay the ruling of the Fourth Circuit Court of Appeals which had required the Gloucester County School Board to open up a male restroom in its schools to a biological female student who identifies as male. Pending the filing of a petition for a writ of certiorari by the school board asking the Court to hear the case on the merits, the school board’s policy permitting only biological boys to use boy’s rooms and girls to use girl’s rooms will be allowed to remain in effect.
While only a procedural development, it is a promising one. The Court could have allowed the Fourth Circuit’s decision to go into effect—but didn’t. The fact that the Court took affirmative action in favor of this school district’s freedom should be heartening to schools around the country who want to retain the ability to set their own policies.
It is especially important that schools take note of this development in the face of the hostile actions of the Obama administration. Despite all the talk of how conservatives focus on social issues, the President is the one obsessed with bathrooms, coming out with an edict that unilaterally makes up law to use as a cudgel against every locality through the country. And the administration is not satisfied to tread lightly. Its edict directs every school district to open not just its bathrooms to people of the opposite sex, but locker rooms, overnight accommodations, and other areas.
The administration is also more radical than the courts. In its opinion, the Fourth Circuit had directed that restrooms be opened to the opposite sex by relying on a legal doctrine demanding deference to an executive branch opinion. The administration, however, in its edict, simply declares a new interpretation of “law” (that Title IX’s definition of sex includes protections on the basis of “gender identity”) without a coherent basis. It flies in the face of multiple sources of legal authority, and exists nowhere except in the fevered minds of modern activist judges, administration officials, and their allies. Schools have properly resisted the Obama administration’s unlawful bathroom edict for this reason. The Court’s latest move is further reason to do so.
