By Gail Deady The Secular Society Women’s Rights Legal Fellow Note: This article was originally posted on the blog of the American Constitution Society for Law and Policy.

On Aug. 3, 2016, the U.S. Supreme Court granted an“emergency” stay to stop Gavin Grimm, a 17-year-old transgender boy from Gloucester, Va., from using the boys’ bathroom at his public high school.

Gavin lives every aspect of his life as a boy. He has a deep voice and facial hair, and his state ID says he is a male. Gavin’s presence in the Gloucester High School’s restrooms – which have long, tall partitions surrounding the urinals and enclosing the toilets – poses no threat to other students’ privacy.

Yet, the Gloucester County School Board in 2014 enacted a policy banning transgender students from using school restrooms that match their gender identity. Gavin is now the only boy at Gloucester High School who is required to use the restroom in the nurse’s office or a unisex single-user restroom instead of the boys’ restrooms.

With help from the ACLU and ACLU of Virginia, Gavin bravely challenged the Board’s policy as constituting sex discrimination under the Equal Protection Clause of the 14th Amendmentand Title IX of the Education Amendments of 1972, which prohibits all discrimination in educational activities on the basis of sex.

Gavin’s case has received national attention due to the United States’ Statement of Interest in support of his Title IX claim, and interpreting one of Title IX’s implementing regulations,34 CFR §106.33, which allows schools to segregate restrooms by sex, to require schools to allow transgender students to use restrooms that match their gender identity. In a landmarkdecision, the Fourth Circuit reversed the district court’s dismissal of Gavin’s Title IX claim and deferred to the DOE’s interpretation of §106.33 under Auer v. Robbins.

On remand, the district court granted a limited injunction allowing only Gavin to use onlythe boys’ restrooms at GHS. It did not apply to anyone else, or affect any other school. It simply allowed Gavin to start his senior year of high school without the shame and stigma of being labeled as “other” every time he has to pee.

After the Fourth Circuit refused to stay the injunction, the Board petitioned the Supreme Court for an “emergency” order to recall the Fourth Circuit’s mandate and stay the injunction, claiming Gavin’s mere presence in the boys’ restrooms would cause students in “kindergarten through 12th Grade” irreparable harm.
Despite declining the invitation to review Auer deference in United Student Aid Funds v. Bible, and the absence of conflicting decisions from other circuits, Chief Justice Roberts and Justices Thomas, Kennedy, Alito and Breyer voted to grant the stay. Justice Breyer cast a courtesy vote, citing his dissenting opinion in Medellín v. Texas.

The Supreme Court’s decision to stay the Grimm injunction casts new uncertainty as to whether the Court will grant certiorari to review the Title IX dismissal. This impacts pending litigation over North Carolina’s discriminatory bathroom bill, HB2, including the DOJ’slawsuit against North Carolina, and North Carolina’s responding countersuit.

It remains to be seen whether the Supreme Court will grant certiorari in G.G., or how this case will affect transgender students’ legal fights beyond the Fourth Circuit. But the irreparable harm the Court’s decision to stay the injunction will cause cannot be understated. No one can give Gavin back his senior year of high school.

And the Court can’t take back the message it just sent to every transgender student in America: that the simple act of using a restroom consistent with who they are is an “emergency” that can irreparably harm their peers—despite all evidence to the contrary.