Appeals court rejects rehearing in transgender bathroom case

RICHMOND, Va. (AP) — A federal appeals court on Wednesday denied a request for a full-court review of a ruling that a Virginia school board’s transgender bathroom ban is unconstitutional.

The 4th U.S. Circuit Court of Appeals in Richmond rejected a request from the Gloucester County School Board for a rehearing to review a ruling that the board’s policy discriminated against Gavin Grimm, a transgender student who was barred from using the boys bathrooms at Gloucester High School.

The board’s policy required Grimm to use restrooms that corresponded with his sex assigned at birth — female — or to use private restrooms.

A federal judge in Norfolk ruled against the school board last year, a ruling that was upheld last month by a three-judge panel of the 4th Circuit.

The school board had argued that laws protect against discrimination based on sex, not gender identity. Because Grimm had not undergone sex-reassignment surgery and still had female genitalia, the board’s position was that he remained anatomically a female.

An attorney for the school board did not immediately respond to a request for comment Wednesday.

Grimm filed his lawsuit in 2015, saying he suffered from urinary tract infections from avoiding school bathrooms as well as suicidal thoughts that led to hospitalization.

The lawsuit became a federal test case when it was supported by the administration of then-President Barack Obama. It was scheduled to go before the U.S. Supreme Court in 2017, but the high court hearing was canceled after President Donald Trump rescinded an Obama-era directive that students can choose bathrooms corresponding with their gender identity.

Grimm, now 21, graduated in 2017. He lives in California and is an activist for transgender rights.

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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

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