WASHINGTON — A federal appeals court on Tuesday announced that it will not be reconsidering an earlier ruling in favor of the Obama administration's policy that transgender students are protected under an existing civil rights law — a move that could send the case to the U.S. Supreme Court.
In mid-April, a three-judge panel of the 4th Circuit Court of Appeals ruled in a 2-1 decision that "the [Education] Department's interpretation of its own regulation [interpreting Title IX of the Education Amendments of 1972] as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case."
The case was brought by a transgender student, Gavin Grimm, against the Gloucester County School Board, which had passed a policy that restricts students to restrooms reflecting their "biological gender." Grimm is represented by the ACLU, and the school board is represented by private lawyers.
The school board asked the full 4th Circuit — en banc — to reconsider the case, but the court announced on Tuesday that it had denied the request. The order stated that none of the judges requested a vote on whether to rehear the case en banc and, as such, the request was denied.
Judge Paul Niemeyer, who was the dissenting judge on the three-judge panel, wrote an opinion dissenting from the court's decision not to rehear the case.
"While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application," Niemeyer wrote.
The school district must now decide if it is going to ask the Supreme Court to do so and grant review of the 4th Circuit's decision. If it does not do so, the case will return to the trial court judge to consider, in light of the appellate court's ruling regarding the administration's interpretation of Title IX, whether to issue the injunction Grimm sought.
Grimm, however, said in a statement that he hopes the case will be over now.
"Now that the Fourth Circuit's decision is final, I hope my school board will finally do the right thing and let me go back to using the boys' restroom," Grimm said in a statement. "Transgender kids should not have to sue their own school boards just for the ability to use the same restrooms as everyone else."
The decision also comes just days after Texas and 10 other states sued the Obama administration over its policies and guidance providing for transgender protections under existing civil rights laws. In addition, several lawsuits are pending in federal courts in North Carolina over similar questions, consequences of that state's anti-LGBT law passed earlier this year.