A federal appeals court on Tuesday refused to rehear a case involving transgender student Gavin Grimm’s battle with his school board for the right to use the boys’ bathroom and locker room facilities at his high school in Gloucester County, Virginia.
In late April, a three-judge panel of the Fourth Circuit Court of Appeals ruled in Grimm’s favor, signaling that the high school’s anti-trans bathroom policy is a violation of Title IX of the U.S. Education Amendments of 1972, a federal law that prohibits sex discrimination at schools that receive federal funding.
In response, the Gloucester County School Board asked all 15 judges who sit on the Fourth Circuit to rehear the case “en banc”, meaning before the full court. In papers filed with the court, the school board argued that the Title IX ban on sex discrimination does not protect transgender students; that the court did not answer the fundamental question of whether the school board’s restroom and locker policy violated Title IX; and that the court’s decision “undermined the constitutional privacy rights of other students.”
In a five-page order Tuesday, the court denied the Gloucester County School Board’s request.
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Grimm’s lawsuit alleges that the school board’s decision to ban him from using the bathroom that aligns with his gender identity is unconstitutional under the 14th Amendment and violates Title IX. Grimm seeks an injunction blocking the school board’s policy.
A lower court initially sided with the school board, ruling that its policy of requiring that students use bathrooms consistent with their “biological sex” rather than their gender identity does not violate Title IX, and that Grimm’s schoolmates’ “bodily privacy” outweighed any potential harm to Grimm in using a different bathroom.
A three-judge panel of the Fourth Circuit disagreed: It held that the lower court relied on the wrong legal standard in failing to issue the injunction. In backing Grimm, the court deferred to recent guidance issued by the U.S. Department of Education that denying transgender students access to school bathrooms of their choice is a violation of Title IX. It remanded the case back to the lower court for a new hearing, with instructions to include consideration of the Department of Education’s guidance.
The Fourth Circuit’s rulings in Grimm’s case do not bode well for North Carolina. The state is currently embroiled in a pair of lawsuits against the United States regarding whether a provision in HB 2, which mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate, is a violation of both Title IX and Title VII of the Civil Rights Act of 1964.
North Carolina filed a lawsuit against the Obama administration in federal court regarding the administration’s “radical reinterpretation” of Title VII, which prohibits sex-based discrimination in employment. That lawsuit is notably silent on Title IX.
The United States’ lawsuit against North Carolina, however, is not: In addition to mentioning Title VII, it alleges that HB 2 constitutes “discrimination on the basis of sex in an education program receiving federal funds in violation of Title IX.”
Since North Carolina sits in the Fourth Circuit and given Grimm’s success before that court, the United States will likely be successful in its Title IX claim. And given that Title VII and Title IX cases are analyzed using similar legal principles, it is likely that North Carolina faces a similar uphill battle in its own Title VII case.
In his dissent from the Court’s order rejecting Gloucester County School Board’s request for a rehearing, Fourth Circuit Judge Paul Niemeyer wrote that “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.” His comments obscure the fact that the courts have frequently ignored the right to bodily privacy: In pushing anti-choice laws, for example, conservatives have leveraged the state’s interest in the “health of the fetus” over a pregnant person’s right to bodily privacy.
Niemeyer further wrote that the Obama administration has “redefin[ed] sex to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy.”
The Obama administration disagrees, and believes that—due to a legal principle sometimes referred to as the Auer/Seminole Rock doctrine—the Department of Education (DOE) is entitled to interpret its own implementing regulations as it sees fit.
Title IX regulations provide for the separation of restrooms, showers, locker rooms, and dorms on the basis of sex, but the regulations are silent as to where transgender students fit when it comes to sex segregation in bathrooms and locker rooms. According to court documents filed by the Obama administration, because there’s no legislative history regarding what Congress meant by “sex,” in Title IX, the DOE can rightfully expand its protection to include transgender people.
It remains to be seen whether the lower court will rehear Grimm’s case as instructed by the Fourth Circuit, or whether Gloucester County School Board will immediately appeal the Fourth Circuit’s ruling to the Supreme Court. In either event, it is expected that the Supreme Court will soon be called to weigh in on the interpretation of Title IX and whether transgender people fall within its protection.