A federal appeals court has denied a Virginia school district’s petition to reconsider a groundbreaking decision on transgender student restroom access in public schools.
States around the country had looked to the case as controversies swell about the Obama administration’s recent guidance that asserted that, under Title IX, schools are obligated to provide transgender students with access to bathrooms, locker rooms, and sex-segregated classes that match their gender identity, even if that differs from their sex at birth. (Here’s an explainer on that guidance.)
Well before that guidance was issued, a three-judge panel of the 4th U.S. Circuit Court of Appeals, in Richmond, Va., ruled that the assertion in favor of transgender students’, long held by the U.S. Departments of Education and Justice, was a valid interpretation of the law.
Citing precedent, the panel said that a lower court had erred in not deferring to the federal interpretation when it considered the case of Gavin Grimm, a transgender Virginia student who’d been denied access to the boys’ restroom at school even though he now identifies as male and has undergone hormone therapy. The appeals court judge ordered the lower court to reconsider Grimm’s case and to honor the federal interpretation of the sex-discrimination law, a move praised by advocates for transgender students.
But the school district at the center of the case immediately appealed en banc, asking the whole court to consider the issue. That appeal snowballed in importance after the Obama administration issued its guidance to all schools, drawing resistance from state leaders around the country who are seeking to overturn the interpretation in court. The court denied the appeal.
“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 again,” Grimm said in a statement provided through 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.”
U.S. Circuit Judge Paul V. Niemeyer, the lone dissent on the appeals court’s three-judge panel that first heard Grimm’s case, also dissented from the decision not to rehear it. He wrote:
Bodily privacy is historically one of the most basic elements of human dignity and individual freedom. And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom. Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons? And do parents not universally find it offensive to think of having their children's bodies exposed to persons of the opposite biological sex?... The Department of Education and the Justice Department, in a circular maneuver, now rely on the majority's opinion to mandate application of their position across the country, while the majority's opinion had relied solely on the Department of Education's earlier unprecedented position."
This isn’t the last legal wrangling over Title IX and transgender students. A federal court in Illinois is hearing arguments from a group of parents who say a suburban Chicago school violated their children’s right to privacy when, under threat of losing its federal funding, it complied with an order from the Department of Education to give a transgender girl unrestricted access to the girls’ locker room. And 11 states have sued over the civil rights guidance, seeking to have it overturned.
School law experts have said the issue may be bound for the Supreme Court if two federal circuits issue differing rulings on the matter.
Photo: Gavin Grimm stands on the front porch of his home in Gloucester, Va., in 2015. The high school student, who was born female but identifies as male, says it’s discriminatory to make him use the girls’ room or a single-stall unisex restroom at school.--Steve Helber/AP
Related reading on transgender students:
A version of this news article first appeared in the Rules for Engagement blog.