On Tuesday, the Fourth Circuit Court of Appeals denied a request for an en banc review of a case where a transgender student sued a school over the right to use the bathroom that corresponded with the student’s gender identity. In the case, G.G. v Gloucester County School Board, the Fourth Circuit had ruled in favor of Gavin Grimm, a transgender male student, saying that Title IX protected his right to use the men’s room.
The Gloucester County School Board appealed for the Fourth Circuit to rehear the case en banc, meaning every judge on the court would hear it instead of a three-judge panel, but the court denied the request.
Judge Paul Niemeyer, one of the judges who decided against the en banc review, wrote, “the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application,” which is why he did not want the case to spend any more time at the Fourth Circuit.
Judge Niemeyer wrote that “schools and the courts must, with care, seek to understand [transgender people’s] condition and address it in permissible ways that are as helpful as possible in the circumstances,” but said that the Obama administrations guidelines were not the way to do it. He said that the action taken by the Departments of Education and Justice threatened “Congress’s policymaking role and the States’ traditional powers.”
But while Judge Niemeyer wrote about understanding and addressing transgender students’ needs, he is also strongly against the concept of allowing people to use a bathroom based on anything other than biological sex. He didn’t mince words, saying, “Virtually every civilization’s norms on this issue stand in protest” to the policy encouraged by the Obama administration, and that forcing students to share a bathroom with someone of the opposite biological sex offends “dignity and freedom.” Nevertheless, he did say that it should be up to the high court to settle the matter once and for all. “Time is of the essence,” he wrote, “and I can only urge the parties to seek Supreme Court review.”
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