The Fourth Circuit Court of Appeals rejected Gloucester County School Board's request to re-hear a case ruled by a three-judge panel allowing a Virginia transgender student to use the bathroom in accordance with gender identity rather than biological sex.
The Virginia school had provided the transgender teen, known as Gavin Grimm, a "private, alternative" restroom. However, Grimm said that the private restroom was too far from most classes.
In April, a panel of three judges in the Fourth Circuit Court of Appeals ruled 2-1 that the policy implemented by the board which mandates use of bathroom in accordance with birth gender is discriminatory, and that Grimm must be allowed to use the bathrooms according to gender identity.
The board appealed to the full Fourth Circuit Court, but was denied review of the earlier ruling in a five-page decision.
One judge, Paul Niemeyer, who had previously also ruled in favor of the school, wrote a dissenting opinion about rejection of the case by the federal court.
"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," he said. "Somehow, all of this is lost in the current Administration's service of the politically correct acceptance of gender identification as the meaning of 'sex'."
Niemeyer urged the school board to appeal in the US Supreme Court, and the case may now be headed to the highest court for review.
"While I could call for a poll of the court in an effort to require counsel to re-argue 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," he continued.
Grimm is being represented by American Civil Liberties Union. They allege that the board's bathroom policy violates Equal Protection Clause of the Constitution and Title IX's protections against sexual discrimination.
By rejecting the school board's request to hear the case en banc, the court allows Grimm to move forward with the lawsuit on its merits, as well as the request for an injunction to stop the policy. If successful in obtaining an injunction, Grimm would be able to resume using the boys' restroom while the case works its way through the courts.
"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. "Transgender kids should not have to sue their own school boards just for the ability to use the same restrooms as everyone else."
