The 4th U.S. Circuit Court of Appeals has denied the Gloucester County School Board’s request to rehear a five-year-long lawsuit brought by former Gloucester High alumnus Gavin Grimm, a transgender male who sued after he was barred from using the boys’ restroom.
The school board had asked for a full rehearing of the case following a 2-1 decision last month to uphold a lower court ruling that Gloucester County had violated Grimm’s constitutional rights when they instituted their transgender policy limiting him to using several makeshift single-stall restrooms or a restroom in the nurse’s office — restrictions to which cisgender students were not subjected.
Yet the 4th Circuit’s denial of Gloucester County’s motion wasn’t unexpected, as requests for rehearing are granted less than 1% of the time, according to the Daily Press, a newspaper that covers Eastern Virginia.
But none of the 15 judges on the 4th Circuit wanted to grant a full rehearing of the case, including Judge Paul Niemeyer, the dissenting vote in last month’s decision. Niemeyer wrote on Tuesday that the case “merits” a rehearing “under every applicable criterion,” but the outcome wouldn’t change.
“There is no reason to conclude that this court…will change its mind,” he wrote in denying the school board’s request, while urging the board to appeal the case to the U.S. Supreme Court.
Niemeyer has asserted that biological and anatomical differences between people of different genders are “at the root of why restrooms are generally separated on the basis of sex.” He contends that Grimm was not treated differently from any other transgender students.
“In stepping past these applicable legal principles, this court’s opinion simply advances policy preferences, which, of course, are for Congress to define, not our court,” he said.
But Judge James Wynn, who ruled in Grimm’s favor, argued that the case should not be reheard because the courts have made the right decision.
“The rights guaranteed by our Constitution enshrine this country’s most fundamental values and inviolable principles designed to protect individuals and minorities against majoritarian politics,” Wynn wrote. “The district court below delivered on this promise by holding that under our laws, the Board unlawfully discriminated against Grimm. This decision was correct.”
The ACLU of Virginia, which is representing Grimm, celebrated the 4th Circuit’s refusal to rehear the case on Twitter.
“Discrimination against trans students is discrimination on the basis of sex and it’s illegal. Full stop,” the organization tweeted.
BREAKING: The Fourth Circuit Court of Appeals denied the Gloucester County School Board's petition for rehearing @GavinGrimmVA's case with the full court.
Discrimination against trans students is discrimination on the basis of sex and it's illegal. Full stop.
— ACLU of Virginia (@ACLUVA) September 22, 2020
The school board is likely to appeal, as it has throughout the five years that Grimm’s case has been litigated in the courts, especially when the courts have decided in Grimm’s favor.
In 2016, the 4th Circuit ruled, on much narrower grounds, that Grimm had a right to pursue a claim of discrimination against the school board, which argued the lawsuit should be dismissed. The school board then appealed that ruling to the U.S. Supreme Court.
But in 2017, after the Trump administration rescinded guidance advising schools to treat transgender students according to their gender identity, the high court refused to hear the case, and sent it back to the 4th Circuit for reconsideration. The appeals court then sent the case back to the lower court to be determined on its merits.
If the school board does ultimately appeal the case to the U.S. Supreme Court, it remains unknown whether the court will choose to take up the case or let the 4th Circuit’s decision stand.
If the high court does take up the case, it is uncertain how the justices will rule, even in light of a 6-3 decision issued in June that declared anti-transgender discrimination to be a form of sex discrimination, at least as it pertains to employment.
However, the high court may be less favorable to transgender rights in a situation involving access to restrooms, given its conservative bent. The court’s ultimate ruling could also rely on whomever Republicans confirm as the next Supreme Court Justice to replace longtime liberal Ruth Bader Ginsburg, who died last Friday, creating yet another vacancy to be filled by President Donald Trump.
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