Dodds v. United States Department of Education

SUTTON, Circuit Judge,

dissenting.

The district court held that Title IX requires federally funded schools to permit transgender students to use the public bathrooms of them choice. In response, the school board sought a stay of that decision, which the district court denied and which my colleagues now deny as well. I must respectfully dissent.

The Supreme Court recently faced the same issue and granted the same request. As in this case, a transgender student filed an action under Title IX to enjoin the school district from preventing such students from using the bathroom of their choice. As in this case, the district court granted relief in favor of the student. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 4:15-cv-54, 2016 WL 3581852 (E.D. Va. June 23, 2016). And as in this case, the district court and court of appeals refused to stay the decision pending further review. See 654 Fed.Appx. 606 (4th Cir. 2016). The school district filed a stay request with the Supreme Court while the Court considered the school board’s petition for review of the Fourth Circuit’s Title IX decision. On August 3, 2016, the Court granted the stay. 136 S.Ct. 2442 . And on October 28, the Court granted the petition. No. 16-273, 2016 WL 4565643 , at *1. The Court presumably will hear argument in the case this Term. The stay will remain in effect until the Court resolves the issue.

The only material difference between this stay request and the stay requests in Gloucester County is that the Supreme Court has now granted the school board’s certiorari petition — something the Fourth Circuit could not have known at the time it acted and something the district court in our case did not know at the time it acted. But that distinction makes a stay more appropriate in our case. Just as the plaintiff in Gloucester County must wait for Supreme Court review before changing the status quo, so should the plaintiff in orn-ease be required to wait for that decision before changing the status quo. Similar treatment of similar plaintiffs is the essence of equal justice under law.

That is all anyone should need to know to resolve this matter. Ours is a hierarchical court system, one that will not work if *223 the junior courts do not respect the lead of the senior court.

Let me add three other points for the sake of completeness: (1) a reference to the standard for granting a stay, (2) its application to a recently completed area of institutional litigation, and (3) a brief response to my colleagues’ efforts to distinguish this case from Gloucester County.

A stay is appropriate if the petitioner demonstrates a reasonable probability that the Court will grant certiorari and reverse the decision below and that denying the stay would inflict irreparable harm on the petitioner. Maryland v. King, — U.S. —, 133 S.Ct. 1, 2 , 183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers). When the Supreme Court stayed the judgment in Gloucester County, it necessarily found that the school board was reasonably likely to succeed on the merits and that it would suffer irreparable harm without a stay. So, it follows, in our case.

The setting of today’s stay request is reminiscent of another set of individual-rights cases with some parallels to this one. After the Supreme Court invalidated the Defense of Marriage Act in United States v. Windsor, — U.S. —, 133 S.Ct. 2675 , 186 L.Ed.2d 808 (2013), several district courts recognized a right to same-sex marriage under the Fourteenth Amendment. In the aftermath of those decisions, the Court had to decide whether to let those decisions go into effect immediately or to stay them pending the States’ certio-rari petitions. The Court stayed the first of the decisions. Herbert v. Kitchen, — U.S. —, 134 S.Ct. 893 , 187 L.Ed.2d 699 (2014). Our court, notably, followed suit by staying a series of district court decisions recognizing a right to same-sex marriage. DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (order). We should take the same path here.

Several other courts of appeals took the same cue and granted similar stay requests. In one of those decisions, Judge Hurwitz of the Ninth Circuit persuasively explained how he saw it. He acknowledged that he would have come to a different conclusion if the motion for a stay had come to him on a “clean[ ] slate,” and he acknowledged that an unexplained stay order by the Supreme Court did not technically bind him in a different case. Latta v. Otter, 2014 U.S. App. LEXIS 16057 , at *15 (9th Cir. May 20, 2014) (Hurwitz, J., concurring). But he nonetheless felt obligated to grant a stay in light of the Court’s “clear message” that a stay was warranted. Id. at *17. The Supreme Court vindicated Judge Hurwitz’s reasoning when it reversed the courts that departed from this path by refusing to grant stays while petitions for certiorari were pending. E.g., McQuigg v. Bostic, — U.S. —, 135 S.Ct. 32 , 189 L.Ed.2d 884 (2014); see William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U.J.L. & Liberty 1, 7-8 (2015). The lesson is straightforward: The lower courts should adhere to the Supreme Court’s stay decisions when faced with indistinguishable claims. If anything, the case for following the Supreme Court’s lead is stronger here because the Supreme Court has already granted review in Gloucester County.

My colleagues try to distinguish Gloucester County on three grounds. They first argue that there is some Sixth Circuit law that applies Title VII to gender non-conforming employees. But that reality is no more relevant than the Fourth Circuit’s holding in Gloucester County that a transgender individual has a right under Title IX to use the bathroom of their choice. They next point out that the plaintiff in Gloucester County was seventeen while the plaintiff here is eleven and has had more mental-health challenges. True, there are differences between children who are seventeen and eleven, just as there are differences between children who are nine *224 and fifteen. True also, some children have greater mental-health needs than others. But I suspect that the Supreme Court’s decision on the merits in Gloucester County will apply the same rule to all of them regardless of their age or the level of counseling they require. My colleagues next argue that the status quo has changed because the school board has complied with the district court’s injunction for six weeks. But the status quo at issue in a stay motion is the lay of the land before the district court’s decision — whether here or in Gloucester County, whether it takes over six weeks to resolve the various stay motions (as here) or five weeks (as in Gloucester County). A contrary rule would reward delay by the courts and the party opposing the stay, and would punish parties who comply with court orders.

The Supreme Court presumably will resolve the Title IX issue in 2017. In the meantime, the Court has indicated that we should wait for further instructions before granting relief on these sorts of claims. These lawsuits pose novel questions and, if successful, will require novel changes to school restrooms and locker rooms. If past is precedent, the Court does not want a patchwork of provisional answers to emerge while it deliberates.

Which leads to one last consideration. If we decline to respect the Supreme Court’s lead in granting a stay request in precisely the same type of case, why should we expect the district courts in our circuit to respect our lead in granting stay requests in related cases? Middle-management courts that ignore instructions from a higher court will eventually learn how it feels and how poorly such a system works.

I respectfully dissent.