The federal appeals court for Virginia on Tuesday denied the Gloucester County School Board's request for a review of its recent ruling in the lawsuit filed by 16-year-old transgender student Gavin Grimm.
In April, a panel of three judges from the 4th Circuit Court of Appeals ruled in favor of Grimm, who is challenging a bathroom use policy imposed by the School Board that requires transgender students to use either a private bathroom or the restrooms assigned to their birth gender. Grimm, who is being represented by the American Civil Liberties Union, was born female but identifies as a boy.
On Tuesday, the appeals court denied a petition for an en banc hearing filed by the Gloucester County School Board. The petition sought to have the case reheard by all nine judges on the appeals court.
In the decision, Judge Paul V. Niemeyer -- who was one of three judges who heard the appeals case in January -- disagreed with the denial but said: "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 again, as the judges did in the hearing in January, questioned the definition of "sex" in Title IX, which is a federal law that prohibits sex discrimination in schools. Among other things, it requires school divisions to provide equal restrooms for male and female students separated on the basis of sex. Niemeyer said "Title IX provides no basis" for the "acceptance of gender identification as the meaning of 'sex.'"
In a lawsuit filed last June, Grimm said the high school is violating Title IX and the Constitution by refusing him access to the boys' restroom.
The three-judge panel voted 2-1, in Grimm's favor, to send the case back to a federal judge in Norfolk. Federal Judge Robert Doumar refused to issue a preliminary injunction that would have required the schools to let Grimm use the boys' restrooms while his discrimination lawsuit proceeds.
"Now that the 4th 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 again," Grimm said in a news release from the ACLU. "Transgender kids should not have to sue their own school boards just for the ability to use the same restrooms as everyone else."
A Virginia federal appeals court overturned a lower court ruling rejecting a transgender Gloucester High School student's claim he had been discriminated against.
A three judge panel of the 4th Circuit Court of Appeals ruled that discriminating against a person on the basis of their gender identity...
A Virginia federal appeals court overturned a lower court ruling rejecting a transgender Gloucester High School student's claim he had been discriminated against.
A three judge panel of the 4th Circuit Court of Appeals ruled that discriminating against a person on the basis of their gender identity...
David Corrigan, the attorney representing the school division, did not return phone calls for comment following the ruling on Tuesday afternoon. Superintendent of Schools Walter Clemons and School Board Chairman Troy Andersen were not available for comment.
The en banc petition filed on May 3 argued that the appeals court did not answer whether or not the bathroom policy violates the Title IX federal law -- "leaving open the question of whether Title IX's statutory phrase 'on the basis of sex' now means 'on the basis of gender identity,' not biological sex." Doumar dismissed that claim of the lawsuit in September. He did not rule on whether or not it violated the 14th Amendment to the Constitution.
The appeals court said Doumar made legal errors in the case and told him to reconsider his decision.
The petition also stated that the School Board's policy was developed to "protect the privacy interests of all students." It states that the appeals court's ruling "tramples on universally accepted protections of privacy."
The case is expected to now go back to the U.S. Eastern District Court in Newport News.
(c)2016 the Daily Press (Newport News, Va.)
