Courtesy Counts in Transgender Bathroom Case

You might be surprised that liberal Justice Stephen Breyer provided the fifth vote Wednesday to block a transgender student from using the men’s room at his high school while his case is pending at the U.S. Supreme Court. The reason is an obscure but important Supreme Court custom known as the “courtesy fifth”: When four justices want to stay a lower court order pending appeal, a justice who otherwise disagrees will provide the fifth vote. The practice is used mostly to delay executions of prisoners with plausible constitutional claims. Ever the pragmatist, Breyer was trading the boy’s short-term interests for the lives of future death-row inmates.

In this case, the school board in Gloucester County, Virginia, adopted a policy requiring students, include Gavin Grimm, to use the bathrooms associated with their biological sex, not their ascribed gender. The U.S. Court of Appeals for the 4th Circuit struck down that rule as a violation of federal sex discrimination law. After that happened, a federal district court issued an order to the school telling it to let Grimm use the men’s room when school starts.