UPDATED June 9, 6:27 p.m. The Fourth Circuit, dividing two to one, refused on Thursday to postpone its decision. The school board now has the option of seeking a delay from the Supreme Court.
Arguing that a local dispute over transgender rights in public schools “is one of national significance,” a school board in Virginia said on Tuesday that it will ask the Supreme Court to clarify that federal civil rights law on sex discrimination does not apply to such controversies. It did so as it asked the U.S. Court of Appeals for the Fourth Circuit to put on hold a ruling that a sixteen-year-old transgender youth has been discriminated against in access to restrooms at school.
The case, the Gloucester County School Board said in its motion, “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.” It noted that its planned appeal had been suggested by a federal judge who was a dissenter in the Fourth Circuit’s ruling in the case. Judge Paul V. Niemeyer had said the issue was of a “momentous nature.”
When it files its case at the Supreme Court, the school board said, it will raise the following issues: whether federal courts must defer to federal government agencies’ view that Title IX’s ban on sex discrimination applies to transgender persons, whether that view violates states’ rights and the constitutional separation of powers, and whether that view intrudes on “bodily privacy rights.”
The case of G.G. v. Gloucester County School Board involves a high school junior who was identified at birth as a girl but identifies as a boy. G.G. and his mother went to court to challenge a school board policy that denies G.G. access to the boys’ restroom at his high school. A three-judge panel split two to one in upholding the challenge, relying specifically upon the views of the U.S. Department of Education. The Fourth Circuit denied rehearing en banc.
Since Education Department officials took the position on Title IX’s scope in January 2015, the U.S. Department of Justice has joined the Department of Education in sending a nationwide letter to school officials, notifying them of the Obama administration’s perspective on Title IX — a 1972 federal law that outlaws discrimination “based on sex” in federally funded education programs. The administration has also filed a lawsuit to challenge a North Carolina state law that limits transgender persons’ right to restrooms across the state.
The actions of federal agencies, the school board’s motion argued, “illustrates that this is a substantial question of national importance.” Those actions, it added,”seek to do what Congress has not done — replace the word ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch.”
Besides the federalism and separation-of-powers concerns, the school board said, the case involves “the balancing of the individual’s right to bodily private against the needs of individuals who are transgender.” That balancing, it said, also raises substantial questions.
The motion asked the Fourth Circuit to delay the issuance of its ruling in a final form while the school board prepares to file its appeal to the Supreme Court, which it said it will do by an August 29 deadline.