136 S.Ct. 2442

Less than two (2) weeks ago on August 3, 2016, the Supreme Court stayed a preliminary injunction issued by the Eastern District of Virginia, G.G. v. Gloucester Cty. Sch. Bd., No. 4:15CV54, 2016 WL 3581852, at *1 (E.D. Va. June 23, 2016), and upheld by the Fourth Circuit Court of Appeals, G. G., by his next friend & mother, Deirdre Grimm, Plaintiff – Appellee, v. GLOUCESTER COUNTY SCHOOL BOARD, Defendant – Appellant., No. 16-1733, 2016 WL 3743189, at *1 (4th Cir. July 12, 2016), allowing a transgender student to use the boys restroom at school. The Fourth Circuit characterized the case as a sex-stereotyping case.

“The First, Sixth, Ninth, and Eleventh Circuits have all recognized that discrimination against a transgender individual based on that person’s transgender status is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause of the Constitution. See Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011) (holding that terminating an employee because she is transgender violates the prohibition on sex-based discrimination under the Equal Protection Clause following the reasoning of Price Waterhouse); Smith v. City of Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004) (holding that transgender employee had stated a claim under Title VII based on the reasoning of Price Waterhouse); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (holding that a transgender individual could state a claim for sex discrimination under the Equal Credit Opportunity Act based on Price Waterhouse); Schwenk v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000) (holding that a transgender individual could state a claim under the Gender Motivated Violence Act under the reasoning of Price Waterhouse).” Id.

The dissent at the Court of Appeals argued that a stay of injunctive relief was appropriate because Title IX allows for separate facilities. Id at *2. Title IX’s regulations regarding the provision of facilities allows for separate toilets if the toilets are provided for each gender. However, this is not a case where one gender has a restroom and the other doesn’t. This is a sex stereotyping case in that the school district stereotypes that a female born student can only identify with the female sex.

The school board appealed and the Supreme Court stayed the injunction issued by the Eastern District of Virginia to preserve the status quo. If the Court denies certiorari, the stay is lifted and the school board in enjoined from discriminating against G.G. If the Court grants certiorari, then the stay remains until judgment of the Supreme Court.