A Virginia school board plans to ask the U.S. Supreme Court to decide whether the Obama administration went too far in directing the nation’s schools to let transgender students use bathrooms of their choice, arguing that the guidance issued to schools is an overreach of power and violates student privacy.
The U.S. Court of Appeals for the 4th Circuit on Tuesday granted the Gloucester County School Board’s request to put the court’s earlier ruling in the case on hold while it petitions the Supreme Court. The 4th Circuit ruled in April that transgender student Gavin Grimm could continue his lawsuit against the school board, in which he has argued that a policy banning him from the boys’ bathroom violates his civil rights.
In a 2-1 decision, a three-judge panel of the court this spring sent Grimm’s case back to a lower court and also deferred to the Obama administration’s position that such bathroom restrictions — that bar students from using bathrooms that coincide with their gender identity — are a violation of Title IX, which prohibits sex discrimination in public schools.
When the 4th Circuit ruled in April, it was the highest court to consider whether such bathroom restrictions amount to discrimination, and the decision tacitly invited the Obama administration to reiterate its guidance. In May, the Obama administration directed U.S. schools to provide transgender students with access to suitable facilities — including bathrooms and locker rooms — that match their gender identity.
That move plunged the administration further into a national debate about transgender rights, a flash point as local and state governments have moved to require people to use bathrooms that match the sex on their birth certificates. The federal guidance on the issue met immediate pushback, with 11 states suing the Obama administration and alleging government overreach that could cause “seismic changes in the operations of the nation’s school districts.”
Tuesday, the Gloucester County school board filed a petition asking the federal appeals court to put the judgment in Grimm’s case on hold while its attorneys prepare a writ of certiorari, asking the U.S. Supreme Court to hear the case.
The School Board argues that the federal court’s deference to the Obama administration’s position is inappropriate and that the administration’s guidance on bathroom policies seeks “to do what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch. This raises substantial questions concerning both federalism and separation of powers.”
David Corrigan, the board’s attorney, did not respond to a request for comment.
In the filing, the board argues that the case will have far-reaching implications as it applies to how the federal government interacts with localities and for bodily privacy, arguing that the current federal guidance puts transgender rights ahead of an individual’s right to privacy in a bathroom.
“This case is one of national significance,” lawyers for the school board wrote in the petition. “It directly affects every school district and college in this Circuit that receives federal funding and indirectly affects every such district and college in the United States.”
Troy Andersen, the school board chairman, defended the board’s policy of prohibiting Grimm from using the boys’ bathroom but providing him with an alternative.
The “solution of providing three single-stall unisex restrooms that anyone could use was a practical, nondiscriminatory answer that met everyone’s interests and properly balanced the needs of transgender students with other students’ right to bodily privacy,” Andersen said in a statement.
Joshua Block, an ACLU attorney who has been working on Grimm’s case, said it is unfortunate that the school board is seeking a Supreme Court hearing at this stage of the case.
“It is a shame that the Gloucester County School Board continues to spend so much time and money to prevent Gavin from using the restroom,” Block said. “We will continue to fight on behalf of Gavin and all transgender students to ensure that schools live up to their obligations under Title IX.”
Stanford law professor Jeffrey Fisher, co-director of the school’s Supreme Court Litigation Clinic, said he doesn’t think the high court will take the case because so far just one federal appeals court has weighed in on the issue.
“As a general rule, the court doesn’t leap to get involved in new and difficult legal questions until the issue has percolated for awhile in the lower courts,” Fisher said.
Emma Brown and Ann E. Marimow contributed to this report.