A Virginia school board being sued by a transgender teen over its restrictive bathroom policy is asking a federal appeals court to rehear its case after the court ruled the teen’s discrimination suit could move forward last month.
The Gloucester County School Board on Tuesday filed a petition asking the U.S. Court of Appeals for the 4th Circuit for a rehearing with a full panel of judges, known as an “en banc” hearing. The board argued that the case warrants a second look because it could affect schools far beyond Gloucester County .
The initial decision by a three-judge panel last month was the first time a federal appeals court had weighed in on the question of whether bathroom restrictions constitute a violation of Title IX, which prohibits sex discrimination at schools that receive federal money.
“This decision will have far-reaching consequences for schools throughout the country without having addressed whether the restroom and locker room policy violates Title IX,” the school board’s attorneys wrote in the petition.
Gavin Grimm, a high school junior who was born female but now identifies as a boy, sued the school board last year after it passed a policy requiring that students use school bathrooms in accordance with their “biological sex” and barred him from the boy’s bathroom.
Joshua Block, a lawyer for the American Civil Liberties Union who is representing Grimm, said he is “hopeful that the 4th Circuit will deny the petition and that Gavin will soon be able to use the school restrooms again.”
Grimm’s case has been closely watched as transgender bathroom rights became a focal point of the debate over lesbian, gay, bisexual and transgender rights, with laws in North Carolina and Mississippi sparking widespread backlash.
In a 2-to-1 decision last month, the court sided with Grimm, allowing his discrimination suit to move forward and ordering a lower court to reconsider his request to use the boy’s bathroom while the case is pending. Judges also deferred to the U.S. Education Department’s position that school policies that bar transgender students from using bathrooms in accordance with their gender identity is a violation of Title IX.
In the school board’s petition to have the case reheard, attorneys argued that the 4th Circuit’s decision leaves too much uncertainty as to how Title IX should apply to “separate living facilities, locker rooms, shower facilities, athletics and employment.”
It’s a concern echoed by a school law expert who said last month that the ruling could put some schools in the difficult position of choosing between violating state law or federal law.
Francisco Negron, general counsel for the National School Boards Association, said last month that the law is “unsettled” when it comes to what school officials are obligated to do to accommodate transgender students.
“It’s really kind of an untenable situation,” Negron said.
Because the 4th Circuit never directly addressed whether the school policy violates Title IX, its decision “leaves more questions unanswered than answered,” attorneys for the board wrote.
“Does Title IX now require educational institutions to allow biologically and anatomically male students, who identify as female, to live in female housing and vice versa? . . .Are schools required to allow transgender students to use the showers and locker room facilities that correlate to their gender identity, not their anatomical sex?” the attorneys wrote. “Must educational institutions permit biologically male students who identify as female to participate in competitive female sports, and vice versa? These are all questions of exceptional importance that justify en banc review.”
For the school board’s case to be reheard an active judge must request a poll of his or her fellow judges as to whether the majority want to proceed.
An earlier version of this story incorrectly stated that judges in the 4th Circuit will vote on whether to rehear the case. An active judge must request a poll of his or her fellow judges as to whether the majority want to proceed.