Setting the stage for the transgender rights issue to move on to the Supreme Court, a divided federal appeals court refused on Tuesday afternoon to delay an order to enforce transgender equality in a Virginia high school. In the case of G.G. v. Gloucester County School Board, the board’s lawyers have said they will now seek a delay from the Supreme Court. The panel’s order with separate opinions is here.
At issue is whether a 16-year-old transgender student will be allowed to use the boys’ restroom at his high school in Gloucester Courthouse when the school year opens September 6. Assigned a girl’s gender at birth, the youth now identifies as a boy. The board will go first to Chief Justice John G. Roberts, Jr., with a plea to postpone that event so that an appeal can be pursued.
Roberts has the authority to act on his own, or share the matter with his colleagues. It would take the votes of five of the eight Justices to grant a delay — a stay order — in the case. The case is moving up from the U.S. Court of Appeals for the Fourth Circuit. Roberts has the power to deal with emergency issues from the Fourth Circuit’s region.
The Supreme Court has not previously dealt directly with issues of transgender equality, but Circuit Judge Andre M. Davis, who supported the denial of the stay on Tuesday, said the Justices made clear as long ago as 1989 that the federal law banning discrimination based on sex must be interpreted expansively. The Obama administration now regards discrimination based on “gender identity” as a form of sex bias outlawed by federal laws Title IX, on education rights and Title VII, on workplace rights.
Judge Davis, along with Circuit Judge Henry F. Floyd, voted to deny the school board’s postponement request. At the core of the case is a temporary order issued by U.S. District Judge Robert G. Doumar of Newport News, Va., requiring the Gloucester board to give G.G. access to the restroom that conforms to his gender identity.
Circuit Judge Paul V. Niemeyer dissented on Tuesday, arguing that to recognize “gender identity” regarding access to restrooms at schools as a form of race discrimination runs counter to “the clear, unambiguous language of Title IX,” explicitly authorizing schools that receive federal education funding to provide separate facilities on the basis of sex, with ” sex” having its traditional biological meaning.
Male students at Gloucester High School, the dissenting judge wrote, will now be denied separate restroom facilities, and thus will be denied “bodily privacy…to the dismay of the students and their parents.”
The school board, in moving on to the Supreme Court, is expected to ask the Chief Justice, or the full Court, to act quickly, with the school year’s opening in a matter of weeks. The school board’s policy generally requires students to use the restroom that conforms to their birth gender, but it also has provided unisex, single toilet facilities for students who wish to use them.