Federal Court Declines To Rehear Case Ruling In Favor Of Transgender High School Student

The Fourth Circuit has declined to rehear a case in which a three judge panel sided with a transgender student seeking to use the bathroom consistent with their gender identity.

Transgender Bathroom Sign

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.

FILED UNDER: Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Tony W says:

    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.

    Waiting, in other words, for the same party to control both the White House and the Senate.

    Or, alternatively, for the D’s to control the Senate.

  2. Jenos Idanian says:

    Dan Joppich over at The American Thinker had an interesting observation when he looked very carefully at the actual language of Title IX.

    “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”

    “students of one sex… students of the other sex.” That seems pretty clear that the law only covers two sexes. Not much wriggle room for other sexes, mixed sexes, in-between sexes, sexless sexes, or any of the 31 flavors of sex that New York City recognizes.

  3. HarvardLaw92 says:

    @Jenos Idanian:

    The case in question only involves two genders – male and female.

  4. Jenos Idanian says:

    @HarvardLaw92: …the high school student, who was assigned female at birth but identifies as a boy.

    Sounds to me like the student in question was identified, biologically, as female by people whose profession involves making such judgments, and the inference to be drawn from “identifies as a boy” would indicate that the biological judgment is still operative.

  5. Tony W says:

    @Jenos Idanian: OMG, why are you ‘small government’ people so obsessed with these silly issues? Just let it go already. News flash – this has been going on for years. It’s not been a problem – and wouldn’t be today if we could just get the christians to stop sending men into the women’s bathroom at Target to be the genitalia police.

  6. James Pearce says:

    @Jenos Idanian:

    Not much wriggle room for other sexes, mixed sexes, in-between sexes, sexless sexes, or any of the 31 flavors of sex that New York City recognizes.

    I suspect that the people of NYC know the difference between a “gender bender” and a “genderqueer.” That these terms are confusing to you should be rather reassuring, no?

    At any rate, I don’t see what the beef is. For me, the question is simple. I’m a dude, so I’ll mark the box next to Dude. I’m willing to allow that this may not be so simple for other people. And if there are other boxes to check for them, I’m okay with that. I’m still a Dude.

    Is this what you object to?

    Businesses that don’t respect and accommodate an individual’s chosen gender identity risk incurring six-figure fines under rules implemented by the city’s Commission on Human Rights.

    That these gender identities are protected in addition to being declared?

    If so, consider substituting “gender identity” for “religious affiliation” or “political beliefs.” Does the argument hold up?

  7. Jenos Idanian says:

    @James Pearce: New York is demanding that businesses first understand the 31 flavors of gender New York City has chosen to recognize, and then — under penalty of law, and serious financial repercussions — “respect and accommodate” them.

    Sounds to me like a whole lot of businesses will simply take the path of least resistance and simply say “screw it” and opt out of even coming into contact with that regulation. Which means, off the top of my head, a great reduction on publicly-available restrooms.

    And note that one of the ways one can violate that law is using an unwelcome pronoun. I recommend businesses inform all employees dealing with the public to simply say “yo,” and if they are caught calling any customer a specific pronoun, like “sir” or “ma’am,” they will be fired on the spot to avoid liability.

  8. humanoid.panda says:

    @Jenos Idanian: American Thinker, the store of such classical texts of American political thought as “Obama and the Muslim Gang Sign”
    and “Rebutting Snopes on ‘Obama’s Muslim Gang Sign’” is the go-to place for deep thoughts about American jurispudence.

  9. humanoid.panda says:

    @Jenos Idanian:

    And note that one of the ways one can violate that law is using an unwelcome pronoun. I recommend businesses inform all employees dealing with the public to simply say “yo,” and if they are caught calling any customer a specific pronoun, like “sir” or “ma’am,” they will be fired on the spot to avoid liability.

    And if that fails, they can always Go Galt.

  10. HarvardLaw92 says:

    @Jenos Idanian:

    Let’s try this again – there are only two flavors of restrictIve restrooms in Gloucester County schools – male and female.

    It’s obvious that you’re trying your best to segue into an opportunity to express your apparent disdain for the concept of transgender people. Sorry that this case doesn’t give you that.

  11. Jenos Idanian says:
  12. HarvardLaw92 says:

    @Jenos Idanian:

    And note that one of the ways one can violate that law is using an unwelcome pronoun.

    Evidently you didn’t read your own cite beyond the sound bite you were looking for (which seems to happen to you with regularity).

    Helpful hint – the last paragraph debunks your assertion. Thanks, I guess.

  13. humanoid.panda says:

    @Jenos Idanian:Man, too bad this taxi driver forgot his Secret PC Police Protection Ring on the day the New York Human Rights Comittee heard his case.

  14. jd says:

    @Jenos Idanian: “Sounds to me like the student in question was identified, biologically, as female by people whose profession involves making such judgments”

    A doctor usually makes this diagnosis without benefit of DNA or hormone tests. As a result, they are sometimes wrong. They will, however, make those tests if the sex organs of the infant are ambiguous. Your tiny binary world has no room for intersex people, therefore I guess they can’t possibly exist. Yet they do, and they’ve been using the bathroom of their choice for as long as you’ve been alive. Scary, huh?

  15. Tyrell says:

    @HarvardLaw92: It does seem that the concept of a gender “neutral” or gender “free” society is the agenda of some group or organization. Some state governments have taken gender pronouns out of official documents. I guess school textbooks will be next. Is this the kind of society that most people want ?
    If I “identify” as a 65 year old, can I apply for Social Security benefits ? What would a judge say ?
    Just what good will a birth certificate be if someone can nullify it at will ?

  16. An Interested Party says:

    Anyone ever see what happened when a (person) tried to order a gay wedding cake from Muslim bakeries?

    Jesus, you’re pathetically desperate…that has nothing to do with the issue of this thread…if you can’t make a convincing argument, it hardly helps you to completely switch subjects…

  17. James Pearce says:

    @Jenos Idanian:

    I recommend businesses inform all employees dealing with the public to simply say “yo,” and if they are caught calling any customer a specific pronoun, like “sir” or “ma’am,” they will be fired on the spot to avoid liability.

    You should write that scenario into a dystopian science fiction novel.

  18. Gustopher says:

    I remain pleasantly surprised by the general populace supporting the transgender community on this — it’s about 60-40 or so, last time I saw a poll.

    The Republicans keep portraying themselves as the party of intolerance, and they are getting roundly rejected. And that fills me with hope for America.

    There’s a libertarian streak in America, but it’s a social libertarian streak in America. It’s not the praise of property rights that the Libertarian Party endorses, and which the Republican Party coddles gently on dark winter nights, but a more sensible desire to maximize the freedoms of the individual.

  19. Just 'nutha ig'rant cracker says:
  20. Slugger says:

    Sexual abuse is abhorrent, and the sexual abuse of a child is especially heinous deserving strict punishment. I can understand the desire to prevent such evils. However, aren’t almost all such crimes committed by people identified by themselves and everybody else as males? On occasion one reads about a woman going after a child, and it seems that the whole internet loves nothing as much as a female teacher and a boy, but these are rare events. I can’t recall any sex crimes committed by either F to M or M to F people. If you want to protect children, shouldn’t we keep Uncles, Priests, Coaches, etc, out of bathrooms?

  21. SKI says:

    @Gustopher: Indeed.

    Similarly, it is a bit comforting to realize that the arguments made by those opposed to treating people with respect all seem to rely on lies, distortions and memes – not facts, reason or coherent sentences.

  22. Pch101 says:

    @humanoid.panda:

    American Thinker deserves to win a Most Oxymoronic Website Title award.

  23. KM says:

    @Jenos Idanian:

    I recommend businesses inform all employees dealing with the public to simply say “yo,” and if they are caught calling any customer a specific pronoun, like “sir” or “ma’am,” they will be fired on the spot to avoid liability.

    How about this: there’s always lingo associated with any profession, usually used so that the employee can talk without the customer knowing what’s happening. Countless articles on the secret code airlines use or Disney or waiters or whomever they picked this week. Why doesn’t the BBB or Chamber of Commerce look into some of these and recommend widespread adoption for the best of the bunch? Or how about using “them/they” as a pronoun and “Customer” instead of “Sir/Ma’am”? As in “Thank you for your business, Customer. Please excuse me as someone else is in line and they are waiting. Have a nice day!”

    The problem is it requires thoughtfulness and the breaking of deeply ingrained habits (ever see someone from the South get castigated for calling a woman Ma’am? Not pretty) that many just don’t want to deal with. It’s very easy to do with practice and the occasional slip will be met with much more grace once it’s understood people are trying. In the end, it’s about respect and business should be all about respecting their customers. That’s how you build your customer base and ensure good profits to come. Good customer service is key and the core of that is making everyone feel welcome and valued.

  24. humanoid.panda says:

    @Pch101: If there is one universal rule on the internet is that anyone or anything that has “thinker” in its monicker will always be awful.

  25. humanoid.panda says:

    @KM: You are giving Jenos way too much credit for truthfulness here. The policy is not about what businesses call clients when they wait in line or something .It’s about what happens when a client asks to be called X and the business insists on calling them Y. Not something a circular from Chamber of Commerce will fix.

  26. Tyrell says:

    @Jenos Idanian: “31 flavors of gender New York City “: and whose bright idea is this ? Is this some more of Mayor DeBliaso’s messed up junk ? Who thinks up stuff like that ? Does that include the “cross dresser half and half” category ? And fines for that stuff ? I guess saying something like “Man, it is hot out there ! ” is going to cost me a $100 if I go to NYC.
    Related reads: ” Uncle John’s Bathroom Reader”, “There Is a Boy In the Girl’s Restroom ! ”
    ( best selling novel by Sachar ). There are actually a lot of books about restrooms.

  27. michael reynolds says:

    @Tyrell:

    This is really simple:

    1) For all of modern history trans folks have been using whatever bathroom they preferred.

    2) This has caused trouble for exactly zero people.

    3) Fox News, Limbaugh and the various PACs who want your money, created this issue so that morons would become outraged and donate cash.

    That is all that’s going on here. Phony outrage over a non-issue for the purpose of separating the suckers from their savings.

    Now, are you going to be one of those suckers? How many more times are you going to let these same people play you? Just how many times do you have to lose at Three Card Monte before you figure out you’re being played?

  28. bill says:

    so if guys just decided to go into any ladies room and just piss all over everything, seats, tp, etc. do you think the “liberated women” would be ok with that?! just hypothetically speaking of course…..

  29. michael reynolds says:

    @bill:

    Is that your secret fantasy, Bill? To pee all over the ladies’ room? No? Then what in God’s name makes you imagine that anyone else wants to?

  30. DrDaveT says:

    @bill:

    so if guys just decided to go into any ladies room […]

    It would be fascinating (though no doubt disturbing) to follow the train of thought that carries bill from the question at hand to this particular fantasy.

  31. michael reynolds says:

    @DrDaveT:

    It’s amazing how often a ‘problem with trans people’ turns out to be ‘creepy cis guys who may benefit from therapy.’

  32. john430 says:

    …and in other news: The head of the Georgia ACLU resigned because she can no longer support the Transgender bathroom issue. Her young daughters were “terrified” when a man entered “their” public restroom.

    Has anyone given any thought to the cost of reconstructing the men’s and women’s bathroom facilities in publicly-owned buildings? All the stalls will have to be rebuilt with ceiling to floor walls, urinals removed, etc.

  33. Matt says:

    @john430: I’m guessing you’re talking about the same woman who claimed the following.

    “I have shared my personal experience of having taken my elementary school age daughters into a women’s restroom when shortly after three transgender young adults over six feet with deep voices entered,” she said in the statement. “My children were visibly frightened, concerned about their safety and left asking lots of questions for which I, like many parents, was ill-prepared to answer.”

    The odds of running into 3 transgender young adults who are over 6 foot and have a deep voice are incredibly tiny. I’m 6 foot 2 and the vast majority of people in public are shorter than me. So finding 3 transgender young adults over 6 foot with deep voices has to be statistically difficult. Let alone just happening to run into 3 of them like she claims..

    She’s clearly of the civil rights for me but not for thee type..

  34. Tyrell says:

    @john430: That is exactly what a lot of other people around here are saying. Business owners are worried. As are school officials who have heard from parents who will take their kids out of the public schools.

  35. Matt says:

    @Matt: You know thinking over what she said and I can’t help but have more questions.

    Like why did she feel the need to point out that they were over 6 foot? Is she implying that real women can’t be that tall?

    In her story the transgenders didn’t do anything at all that would be considered inappropriate. The implication here being that their existence alone was more then enough to be considered inappropriate and offensive. Doesn’t this woman realize that this was the same thing said by white people when they were banning blacks from the restrooms? In case you’re not aware the woman I quoted is black.

  36. bill says:

    @michael reynolds: not at all, it’s just could be an unintended consequence of an idiotic law! i mean really, this didn’t cross your brilliant mind, ever?

    @DrDaveT: c’mon- you don’t think about dumb laws and potential consequences of said? watch southpark sometime!

    side note- i did wander into the wrong bathroom years ago, fortunately it was at a strip club and there were no ladies in there! and no, i didn’t finish what i came for…..

  37. Curtis says:

    I’ve decided to identify as an employee of every store I shop in, to get a discount.

  38. mannning says:

    A biological man that identifies as a woman can use the stalls with privacy.
    A woman that identifies as a man can use the stalls with privacy. The only seeming conflict is when men/women and women/men pass in the outer areas of the bathroom along with men/men and women/women, but they do pass in the hall just outside the bathrooms anyway. Except when women/men and women/women have to pass a row of men/men using the urinals. In this case they can simply avert their eyes and keep on trucking…so there isn’t much of a problem here, I believe. Anyone been to Paris lately? Or driven roads in Europe and witnessed men peeing beside the road? One quickly learns simply to ignore it.