The Gloucester County School Board is apparently in “never say die” mode when it comes to cluttering up the courts with litigation. The board has now appealing a decision by the 4th U.S. Circuit Court of Appeals that allows transgender student Gavin Grimm to sue the board over its restroom policy by alleging it discriminates on the basis of sex, reports The Washington Post.
The decision in question was decided in April, when a three-judge panel voted 2-1 to restore Grimm’s lawsuit alleging that the bathroom policy adopted by the Gloucester County School Board, which limits him to using either the girls’ restroom or a “private, alternative” facility, such as a renovated broom closet, violates Title IX’s prohibitions on sex discrimination. That claim had previously been thrown out by a lower court judge, who also refused to grant an injunction to stop the restroom policy from being enforced.
The April decision marked the first time that a federal appeals court had ruled in favor of a transgender student’s claim that discriminating against a person on the basis of gender identity is the same as discriminating based on sex or sex-based stereotypes. In that decision, the appeals court gave deference to an interpretation of Title IX as adopted by the U.S. Department of Education’s Office of Civil Rights, which had previously issued a similar finding in a case out of Illinois.
The Gloucester County School Board then asked for an en banc review, in which all 15 sitting members of the Fourth Circuit would rehear Grimm’s appeal asking for an injunction and the ability to sue under Title IX. Last week, the court rejected that request.
In a dissenting opinion, Paul Niemeyer, a George H.W. Bush appointee who had ruled against Grimm in the 2-1 decision, rejected the idea that sex discrimination applied to transgender lawsuits. According to Niemeyer, both Grimm’s lawsuit, and a subsequent guidance from the Obama administration that directs schools to allow transgender students to use facilities consistent with their gender identity, did not have any merit. But Niemeyer said that he did not call for a poll of the Fourth Circuit to rehear the case because he felt time was of the essence, and refusing the request to hear the case would allow the board to appeal directly to the Supreme Court in the hope of stopping the new guidance from being implemented by schools.
In the meantime, the Fourth Circuit has agreed to put a hold on the implementation of its decision while the Gloucester County School Board appeals to the Supreme Court. The board claims that the Obama administration’s interpretation of Title IX goes too far beyond the intentions of the law, violates separation of powers by trying to circumvent Congress, and violates the privacy of cisgender students who are uncomfortable sharing facilities with their transgender peers.