School Board To Seek Review Of Appeals Court Ruling In Favor Of Transgender Protections

The Obama administration has taken the position that sex discrimination bans under federal law include protections against anti-transgender discrimination. On Tuesday, the 4th Circuit Court of Appeals upheld that interpretation. [Update: On Friday, the school district announced that it will be asking the full court of appeals to review the ruling.]

WASHINGTON — A federal appeals court on Tuesday upheld the Department of Education's interpretation of existing federal civil rights laws to protect transgender people against discrimination in education.

The 4th Circuit Court of Appeals, in a 2-1 decision, upheld the department's interpretation of Title IX of the Education Amendments of 1972, which is that the law's ban on sex discrimination requires school districts to allow transgender people to use the restroom that corresponds with their gender identity.

The Gloucester County School Board, however, passed a policy that restricts students to restrooms reflecting their "biological gender." The transgender student who was targeted by the policy, Gavin Grimm, brought this lawsuit in federal court, seeking an injunction against enforcement of the board's policy.

The decision is a big victory for the Obama administration, which weighed in at the appeals court to support Grimm’s challenge, and the Equal Employment Opportunity Commission, which has been making the case for protecting LGBT people under existing civil rights laws since 2012. The Education Department, for its part, has been pressing the Title IX interpretation with school districts since 2013.

The appeals court had heard the arguments in January, and Tuesday's ruling is the first such appellate ruling in the country on the Obama administration's policy — which it also has advanced regarding the sex discrimination ban under Title VII of the Civil Rights Act of 1964.

Among the states included in the 4th Circuit is North Carolina, which recently passed a law limiting restroom use in government facilities — including schools and universities — to that which corresponds with a person's "biological sex." The ACLU, which is backing Grimm's suit, also has brought suit against the North Carolina law.

The appeals court first held that the language of regulations implementing Title IX were ambiguous as to transgender restroom use and then finding that the department's interpretation of those regulations — allowing transgender students to use the restroom that corresponds with their gender identity — was a legitimate interpretation.

"We conclude that the Department’s interpretation of its own regulation ... as it relates to restroom access by transgender individuals, is entitled to ... deference and is to be accorded controlling weight in this case," Judge Henry Floyd wrote for the court.

The appeals court did not, however, grant the preliminary injunction Grimm is seeking, instead sending the case back to the district court to reconsider his request.

Judge Andre Davis — who agreed with Floyd's decision for the court, including the decision to send the preliminary injunction request back to the district court — did note that "this Court would be on sound ground in granting the requested preliminary injunction on the undisputed facts in the record."

Judge Paul Niemeyer, however, dissented from the appeals court decision, writing that the ruling "overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect."

The appeals court — in a portion of the opinion joined by all three judges on the panel — also declined to reassign the case to another judge at this time. Grimm's lawyers had asked for the case to be reassigned because of comments previously made during the case by U.S. District Court Judge Robert Doumar — including calling being transgender a "mental disorder."

Floyd noted that, while Doumar's comments in court were "idiosyncratic," the appeals court concluded that "the district court’s written order in the case do not raise in our minds a question about the fundamental fairness of the proceedings."


On Friday, the Gloucester County School Board announced that it will be asking the full 4th Circuit to review the ruling en banc.

Full board statement, via BuzzFeed News national LGBT reporter Dominic Holden:

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