Appeals court denies re-hearing in Gloucester transgender bathroom case; U.S. Supreme Court could be next

A federal appeals court on Tuesday denied the Gloucester School Board’s request for a full rehearing in the long-running case of a lawsuit filed by a transgender student.

The next step could be the U.S. Supreme Court — where the case had once been destined before the high court sent it back to lower courts in 2017. The decision by the 4th U.S. Circuit Court of Appeals wasn’t unexpected: Requests to have all 15 judges hear a case are rarely successful, granted less than 1% of the time.

In August 2019, a Norfolk federal judge ruled that the School Board’s policy — limiting bathroom usage at the schools to students “with corresponding biological genders” — violated transgender student Gavin Grimm’s constitutional rights and federal legal protections. Last month, a three-judge panel for the 4th Circuit voted 2-1 to uphold Wright Allen’s ruling, likening the board’s policy to illegal racial segregation in public accommodations.

The Gloucester School Board filed a petition Sept. 9 asking that all 15 judges on the appellate court — from Virginia, West Virginia, Maryland, North Carolina and South Carolina — hear the case “en banc.”

But none of the 15 judges wanted to do that. That included Judge Paul V. Niemeyer, who sided with the School Board in last month’s 2-1 ruling. Niemeyer wrote Tuesday that the case “merits” a rehearing “under every applicable criterion,” but that the outcome wouldn’t change.

“There is no reason to conclude that this court, even though en banc, will change its mind,” Niemeyer wrote.

“It would, I believe, be the more efficient course” for the Gloucester School Board to ask the U.S. Supreme Court to hear the case, he wrote. “The issues in this case certainly merit its doing so.”

Niemeyer asserted that biological and anatomical differences between people are “at the root of why restrooms are generally separated on the basis of sex.” Grimm, he wrote was not treated differently from 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,” Niemeyer wrote.

Another judge on the three-judge panel, James Wynn, wrote against a rehearing on a different ground — that the courts have gotten it right so far.

“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,” he wrote.

“The district court below delivered on this promise by holding that under our laws, the Board unlawfully discriminated against Grimm,” Wynn added.

Grimm — who identifies as a male — began using the boys’ room at Gloucester High School in late 2014. But after parents objected to the practice, the board soon adopted a policy barring him from doing so.

Grimm and the ACLU sued the School Board in 2015, asserting that the policy turned him into an outcast and violated both his constitutional rights and federal law.

David Corrigan and Gene Schaerr, outside attorneys for the School Board, didn’t immediately return phone calls Wednesday on whether they would now file a petition with the U.S. Supreme Court.

The high court had agreed to hear the case more than years ago but sent it back to lower courts after the U.S. Justice Department changed its legal guidance on the issue with the new administration.

Peter Dujardin, 757-247-4749, [email protected]

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