In what is likely to be a very temporary order, but still a very significant one for the near-term future of transgender rights, the Supreme Court voted 5–3 on Wednesday to stay an appeals court decision siding with a trans student who challenged his school district bathroom policy. Last June, the United States Court of Appeals for the Fourth Circuit ordered a Virginia school district to stop excluding the trans student from bathrooms that align with his gender identity. That decision is now stayed “pending the timely filing and disposition of a petition” asking the Supreme Court to fully consider the case on the merits.
The Court’s entire order in Gloucester County School Board v. G.G. is only a paragraph long, and it was issued over the dissents of Justice Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Notably, however, Justice Stephen Breyer — a Clinton appointee — issued a one paragraph concurring opinion along with the Court’s order:
In light of the facts that four Justices have voted to grant the application referred to the Court by THE CHIEF JUSTICE, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy.
Breyer, in other words, believed that this stay should be denied. Yet he provided the key vote to grant it, nonetheless, as a “courtesy” to his conservative colleagues. Such courtesy votes are an ordinary practice in death penalty cases, when four justices wish to hear a case but a fifth vote is necessary to stay the execution — lest the inmate be executed before their case receives full review. But Justice Breyer’s decision to grant such a “courtesy” in a case such as this one is more unusual.
Unlike in death penalty cases, no one will die and the case will not become moot simply because a trans student is granted a measure of civil rights.
In any event, Breyer’s decision to grant the stay allows the school district to continue its policy at least until the Supreme Court returns to work at the end of September. The content of his concurring opinion, however, suggests that Breyer will ultimately join the Court’s three women in affirming the Fourth Circuit’s decision, should the Court decide to hear this case.
Beyond the temporary implications of Breyer’s vote, however, there are also two reasons why liberals should be concerned about the order in this case. The first is that Breyer’s willingness to grant a courtesy stay in this case hints that he may be willing to do so in others, most notably in voting rights cases where supporters of the right to vote are counting on the fact that conservatives no longer enjoy a majority on the Supreme Court to protect lower court decisions halting voter suppression laws.
Additionally, it is worth noting that Justice Anthony Kennedy, a conservative who typically favors gay rights, joined his fellow conservatives in voting against this trans student. That suggests that Kennedy’s sympathy for victims of anti-gay discrimination does not extend to victims of anti-trans discrimination.