The Fourth Circuit Court of Appeals denied a request to rehear a ruling handed down in April by a three judge panel that sided with a student who identifies as a transgender male and ordered the school district he attends to allow him to use the bathrooms consistent with the gender he identifies with:
A federal appeals court that sided with a transgender teen in his lawsuit against a Virginia school board has denied the board’s request to rehear the case before a full panel of judges.
The Court of Appeals for the 4th Circuit ruled in April that a lawsuit filed by transgender teen Gavin Grimm, who sued the Gloucester County School Board after it passed a policy banning him from the boy’s bathroom, could move forward.
The initial decision by a three-judge panel last month was the first time a federal appeals court had weighed in on the question of whether bathroom restrictions constitute a violation of Title IX, which prohibits sex discrimination at schools that receive federal money. It is being closely watched nationwide as battles over the rights of transgender students head to court.
The school board in May requested a rehearing of the case before a full panel of judges, known as an “en banc” hearing, arguing that the case warranted a second look because it has national implications.
Tuesday, the court denied the petition after no judge requested a poll to see whether a majority of his or her colleagues wanted to move forward.
Nonetheless, Judge Paul V. Niemeyer wrote a dissent, saying that he believes the case deserves to be reheard but declined to request a poll himself because he wants the case to move quickly to the U.S. Supreme Court. Niemeyer also dissented from the court’s decision in April, saying that the court’s holding “overrules custom, culture and the very demands inherent in human nature for privacy and safety.”
The case is set to head back to a federal court in Virginia, where a judge will reconsider it in light of the ruling from the appeals court, inck, the ACLU attorney representing Grimm, said he was pleased by the appeals court’s decision because it could mean a swifter resolution for the high school student, who was assigned female at birth but identifies as a boy.
Joshua Block, the ACLU attorney representing Grimm, said he was pleased by the appeals court’s decision because it could mean a swifter resolution for the high school student, who was assigned female at birth but identifies as a boy.
“We hope this means it won’t be much longer until he’s finally able to use the restroom again,” Block said.
This isn’t entirely surprising, of course. It is generally speaking exceedingly rare for a Circuit Court of Appeals to grant en banc review unless there is clear error in a panel ruling. In this case, the panel’s decision is largely supported by the Supreme Court’s 1997 ruling in Auer v. Robbins, which states that Courts should defer to an Executive Branch agencies interpretation of its own regulations and by the Department of Education’s interpretation of the regulations it issued pursuant to Title IX of the Education Amendments of 1972 which stated that schools should accommodate transgender students by allowing them to use the facilities that are consistent with their gender identity rather than their biological sex. This level of deference to agency rule interpretation has been criticized by many conservative legal scholars and Supreme Court Justices but has generally survived challenges over the past 20 years. More recently, though, the rise of the Court’s conservative majority has led many to believe that the Auer ruling could be in danger. As Ian Millhiser notes, though, the death of Justice Scalia has made it unlikely that Auer will be overturned. In the short term, this likely means that either the currently eight member Court will not accept this case for appeal, which means that the panel decision will stand, or that if it did oral argument without a ninth member will result in a 4-4 tie that will keep the panel decision in place.
The current ruling will likely also have a significant impact on the cross-lawsuits filed by the State of North Carolina and the Department of Justice over the bill recently passed North Carolina’s legislature bill that, among other things, forbid accommodation for transgender individuals in public schools or anywhere else in the state. Since North Carolina is part of the Fourth Circuit the ruling in the Virginia case will control the outcome of that case. Elsewhere, though, the policy that at issue in the Virginia case faces a less certain fate. Last week, Texas and ten other states filed suit against the Departments of Education and Justice contending that their interpretation of Title IX, and Title VII of the Civil Rights Act of 1964, to include discrimination against transgender individuals was outside the authority of the agencies involved. Considering that this claims was filed in the relatively conservative Fifth Circuit, there’s a good chance that the courts will find for the states, although it’s worth noting that there is a significant question as to whether the states really have standing to file suit at this point. In any case, if that’s how the case proceeds, then we’ll have a Circuit split on this issue that will be irresolvable until the Supreme Court is back up to its full compliment of members. Given the pace at which litigation moves, though, it’s unlikely that there will be significant action on the Texas case until after election, at which point the future make up of the Court will become clearer. At that point, the Justices could decide to defer hearing significant cases until a new President has named a successor and that successor has been confirmed. However it all works out, though, this is a legal issue that won’t be going away any time soon.
